The State of Western Australia v Winch
[2024] WASCA 79
•3 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WINCH [2024] WASCA 79
CORAM: MITCHELL JA
HALL JA
VANDONGEN JA
HEARD: 12 JUNE 2024
DELIVERED : 3 JULY 2024
FILE NO/S: CACR 11 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DAVID ANTHONY WINCH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARONE DCJ
File Number : IND 1766 of 2021
Catchwords:
Criminal law - Appeal against sentence - State appeal - Whether sentence was manifestly inadequate - Where offender pleaded guilty to offence of persistently engaging in family violence - Whether sentencing judge erroneously took into account as a mitigating factor custodial conditions experienced while withdrawing from alcohol and medication use
Legislation:
Criminal Code (WA), s 221BD, s 297, s 298, s 299, s 300, s 301, s 304, s 313, s 317, s 317A, s 321A, s 323, s 324, s 338B, s 338C, s 338E, s 444(1)(b)
Criminal Procedure Act 2004 (WA), s 21(2)
Family Violence Legislation Reform Act 2020 (WA)
Restraining Orders Act 1997 (WA), s 61, s 63
Sentencing Act 1995 (WA), s 6(2), s 8(1), s 9AA
Result:
Appeal allowed
Respondent resentenced
Category: A
Representation:
Counsel:
| Appellant | : | R F Owen SC & M Plester |
| Respondent | : | S H King |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (Perth) |
Case(s) referred to in decision(s):
AJ v The State of Western Australia [2016] WASCA 13
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Drage v The State of Western Australia [2021] WASCA 6
Duncan v The State of Western Australia [2018] WASCA 154
Gillespie v The State of Western Australia [2016] WASCA 216
Gomboc v The State of Western Australia [2023] WASCA 115
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Iveson v The State of Western Australia [2005] WASCA 25
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
McAlpine v The State of Western Australia [2018] WASCA 195
McCombe v The State of Western Australia [2016] WASCA 227
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
MYB v The State of Western Australia [2024] WASCA 53
Pureau v The State of Western Australia [2017] WASCA 115
The King v Hatahet [2024] HCA 23
The State of Western Australia v Chungarai [2021] WASCA 147
The State of Western Australia v Pereira [2023] WASCA 162
The State of Western Australia v Riley [2024] WASCA 11
XBX v The State of Western Australia [2024] WASCA 43
JUDGMENT OF THE COURT:
Introduction
Over a period of about eight years, the respondent subjected his wife to repeated assaults, and on several occasions, made serious threats of violence toward her. On most of those occasions, the respondent was drunk. On the morning of 26 September 2023, which was to be the first day of his trial in the District Court, the respondent pleaded guilty to an offence of persistently engaging in family violence, contrary to s 300 of the Criminal Code (WA) (Code). On 1 February 2024, the respondent was sentenced to 2 years and 3 months' immediate imprisonment. An order was made that the respondent was eligible to be considered for release on parole and a lifetime family violence restraining order was made to protect the victim.
The State now appeals against the sentence imposed on the respondent, arguing that the sentencing judge made a material error of fact in relation to the conditions under which the respondent was required to serve his sentence of immediate imprisonment. The State also contends that the sentence of 2 years and 3 months' immediate imprisonment is manifestly inadequate.
The State applied for and was granted an urgent appeal order. Further, on 22 April 2024, Buss P granted the State leave to appeal on the grounds of appeal contained in the appellant's case dated 17 April 2024.
By an application dated 17 May 2024, the respondent applied for leave to adduce additional evidence in the event that the court was otherwise minded to allow the appeal, in support of a contention that it should exercise its residual discretion to dismiss the appeal or on the basis that it was relevant to resentencing. In that regard, the respondent filed an affidavit that he swore on 15 May 2024 and a further affidavit sworn by the respondent's solicitor and counsel, on 16 May 2024 (the Additional Evidence). That application was granted at the hearing of the appeal.
For the following reasons, the appeal should be allowed, and the respondent should be resentenced to 5 years and 8 months' imprisonment.
The charge
The respondent was charged on indictment with an offence contrary to s 300 of the Code, which was in the following terms:
Between 31 December 2011 and 19 December 2019 at Ferndale [the respondent] persistently engaged in family violence against [the victim].
To properly understand the basis upon which the sentence of 2 years and 3 months' immediate imprisonment was imposed on the respondent, it is necessary to have some understanding of the relevant offence‑creating provision.
Section 300 was inserted into the Code by the Family Violence Legislation Reform Act 2020 (WA) (FVLR Act) on 1 October 2020. According to the relevant Explanatory Memorandum that accompanied the Family Violence Legislation Reform Bill 2019 (WA) (FVLR Bill), the purpose of the FVLR Act was to:
deliver a package of reforms 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.
Amongst other legislative reforms introduced by the enactment of the FVLR Act, the insertion of s 300 created a new offence of 'persistent family violence', which is in the following terms:
300.Persistent family violence
(1) A person commits a crime if the person persistently engages in family violence.
Penalty for this subsection: imprisonment for 14 years.
Summary conviction penalty for this subsection: imprisonment for 3 years and a fine of $36 000.
(2) A charge of an offence under subsection (1) -
(a)must specify the period during which it is alleged that the acts of family violence occurred; and
(b)need not specify the dates, or in any other way particularise the circumstances, of the acts of family violence that are alleged to constitute the offence.
(3)Subsection (2) applies despite the Criminal Procedure Act 2004 sections 23 and 85.
(4)A person may be charged with both -
(a)an offence against subsection (1); and
(b)1 or more prescribed offences that are alleged to have occurred in the period during which it is alleged that the acts of family violence constituting the offence under subsection (1) occurred (including an offence or offences allegedly constituted by an act or acts that are the subject of allegations made for the purposes of an offence against subsection (1)).
(5)A court cannot order the prosecutor to give a person charged with an offence under subsection (1) further particulars of the dates and circumstances of the acts of family violence that are alleged to constitute the offence, despite the Criminal Procedure Act 2004 section 131.
(6)If in a trial by jury of a charge of an offence under subsection (1) there is evidence of acts of family violence on 4 or more occasions, the jury members need not all be satisfied that the same acts of family violence occurred on the same occasions as long as the jury is satisfied that the accused person persistently engaged in acts of family violence in the period specified.
(7)If a person is found not guilty of an offence against subsection (1), the person may nevertheless be found guilty of 1 or more prescribed offences committed during the period specified in the charge for the offence against that subsection if the commission of the prescribed offence or prescribed offences is established by the evidence even if the person has not been charged with one or more of those prescribed offences, despite section 10A.
(8)However -
(a)if a person has been convicted or acquitted of a prescribed offence, the act constituting the prescribed offence cannot constitute an act of family violence for the purposes of establishing an offence against subsection (1) in separate or subsequent proceedings; and
(b)if a person has been convicted or acquitted of an offence against subsection (1), the person cannot, in separate or subsequent proceedings, be found guilty of a prescribed offence constituted by an act that was the subject of evidence presented to the court for the purposes of proceedings for the offence against subsection (1); and
(c)nothing in this section otherwise allows a person to be punished twice for the same act.
(9)For the purposes of this section, a person ceases to be regarded as having been convicted of an offence if the conviction is set aside or quashed.
(10)For the purposes of this section, an act that constitutes a prescribed offence may have occurred before the commencement of this section, unless the prescribed offence was not an offence at the time at which the act occurred.
Section 299, which was inserted into the Code at the same time, contains several provisions that are relevant to a proper understanding of s 300:
299.Terms used in relation to s. 300 (persistent family violence)
(1)In this section and section 300 -
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;
prescribed offence means -
(a)an offence against section 221BD, 298, 301, 304(1), 313, 317, 317A, 323, 324, 338B, 338C, 338E or 444(1)(b), or an attempt to commit such an offence; or
(b)an offence against the Restraining Orders Act 1997 section 61(1) or (1A).
(2)For the purposes of this section, an intimate personal relationship exists between 2 persons (including persons of the same sex) if -
(a)the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition; or
(b)the persons date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved.
(3)In deciding whether an intimate personal relationship exists under subsection (2)(b), the following may be taken into account -
(a)the circumstances of the relationship, including, for example, the level of trust and commitment;
(b)the length of time the relationship has existed;
(c)the frequency of contact between the persons;
(d)the level of intimacy between the persons.
(4)For the purposes of this section and section 300, a person does an act of family violence if -
(a)the person does an act that would constitute a prescribed offence in relation to another person with whom the person is in a designated family relationship; and
(b)the person is not a child at the time of doing the act.
(5)For the purposes of this section and section 300, a person persistently engages in family violence if the person does an act of family violence on 3 or more occasions each of which is on a different day over a period not exceeding 10 years against the same person.
(6)For the purposes of subsection (5), the acts of family violence -
(a)need not all constitute the same prescribed offence; and
(b)need not all have occurred in this State as long as at least 1 of them did.
(7)However, in relation to an act that constitutes a simple offence, an act cannot be an act of family violence if the date at the end of the period during which it is alleged that the acts of family violence occurred for the purposes of this section is outside the period during which it would be possible to charge the accused person with that offence.
As can be seen, s 300(1) of the Code creates an offence of persistently engaging in family violence, which attracts a maximum penalty of 14 years' imprisonment, or a maximum penalty of 3 years' imprisonment and a fine of $36,000 if dealt with summarily.
A person 'persistently engages in family violence' if they do an 'act of family violence' on three or more occasions, each of which occurs on a different day, against the same person, and over a period that does not exceed 10 years (s 299(5)). Relevantly, a person does an 'act of family violence' if they do an act that would constitute a 'prescribed offence' in relation to another person with whom they are in a 'designated family relationship' (s 299(4)).
A 'prescribed offence' is an offence against s 221BD, s 298, s 301, s 304(1), s 313, s 317, s 317A, s 323, s 324, s 338B, s 338C, s 338E or s 444(1)(b) of the Code, or an attempt to commit such an offence; or an offence against s 61(1) or s 61(1A) of the Restraining Orders Act 1997 (WA) (s 299(1)).
A 'designated family relationship' means a relationship between two people who are, or were, married to each other, or in a de facto relationship, or otherwise had an 'intimate personal relationship' with each other (s 299(1)). An 'intimate personal relationship' exists if the two people are engaged to be married to each other, including a betrothal under cultural or religious tradition, or they date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved (s 299(2)). In deciding whether an 'intimate personal relationship' exists, s 299(3) identifies several matters that may be taken into account, including the circumstances of the relationship, the period of time over which it existed, the frequency of contact between the two people in the relationship, and their level of intimacy.
Although a charge of persistently engaging in family violence must specify the period during which it is alleged that the acts of family violence occurred, there is no need to specify the dates, or in any other way particularise the circumstances of those acts (s 300(2)), and the prosecutor cannot be ordered to provide further particulars (s 300(5)). The prosecution may charge an accused with both an offence against s 300(1) and a prescribed offence alleged to have been committed during the same period (including a prescribed offence constituted by an act or acts that are alleged to make up the offence under s 300(1)) (s 300(4)).[1] However, other provisions operate to protect an accused from double jeopardy and the prospect of double punishment (s 300(8)).
[1] See also s 300(7), which enables a person to be found guilty of one or more prescribed offences committed during the period specified in the charge for an offence against s 300(1) if the commission of the prescribed offence or prescribed offences is established by the evidence, even if the person has not been charged with one or more of those prescribed offences.
As explained in the Explanatory Memorandum to the FVLR Bill:
This offence recognises that family violence often forms a pattern of offending against a victim, and that the persistent nature of the offending means the victim may find it difficult to recall specific details of each individual act of violence perpetrated against them, or to provide corroborating evidence to assist in particularising the dates and circumstances of this offending.
There are obvious parallels between an offence of persistent family violence and the offence of persistently engaging in sexual conduct with a child under the age of 16 years, contrary to s 321A of the Code. Section 321A was intended to deal with cases in which a person commits certain sexual offences against a child, but the child may not be able to say exactly how many offences occurred or exactly what occurred on any particular occasion.[2]
[2] XBX v The State of Western Australia [2024] WASCA 43 [92] (Hall JA).
Facts
The following is derived from the sentencing judge's remarks, and from a document entitled 'Further Amended Statement of Material Facts', dated 17 January 2024.[3] Counsel who appeared for the respondent at first instance agreed that this was the basis on which the respondent should be sentenced,[4] and the sentencing judge expressly incorporated the contents of the document into her findings of facts.[5]
[3] This was read aloud by the prosecutor who appeared at the relevant sentencing hearing, and also forms part of the white appeal book, 201.
[4] ts 65, 67.
[5] ts 150.
The respondent, who was 52 years old at the time of sentencing, is just over 10 years older than the victim. The respondent and the victim started a relationship in early 2006 and then lived together from June 2006, before becoming engaged in 2008 and marrying in May 2009.
There was no physical violence between them before the end of 2010, although the victim noticed the respondent was prone to anger towards people he perceived had aggrieved him. However, between 2010 and 2011, the respondent's alcohol consumption began to increase, and he became verbally and physically abusive towards the victim. From January 2012, the respondent gradually became more physically violent and abusive, and there were many occasions on which he would push and shove the victim. Most of the events that involved violence happened at night and when the respondent was very drunk. Generally, the respondent would apologise to the victim the next day and he would tell her it would never happen again.
The facts relied on by the State referred to several specific occasions on which the respondent did an 'act of family violence'. Each occasion was designated by reference to 'prescribed offences' within the meaning of s 299(1) of the Code.
Prescribed offence 1: common assault
In April 2012, the respondent threw a meat pie at the victim, which struck her in her face. The victim's father found her with her face covered in pie, crying.
From around September 2013, the respondent's violence escalated. This frightened the victim and made her fear for her life.
Prescribed offence 2: threat to kill
At about 10.00 am on 3 September 2013, the victim and respondent were in the kitchen of their home when the respondent became angry about various matters, including issues relating to Family Court proceedings that involved the respondent's previous partner. The respondent began verbally abusing the victim, before he took a kitchen knife and put it to the victim's throat. The victim froze and became very fearful, and she begged the respondent not to hurt her. The respondent told her it was no longer her choice whether she lived. The victim could feel the knife touching her skin, although it did not break the skin. When the victim told the respondent that his son needed him, the respondent said he did not care and that he would kill himself next.
When the victim begged for some water, the respondent released her and slammed the knife down with enough force to leave a mark on the kitchen benchtop. The respondent said words to the effect of 'I was going to kill you then, it's not the alcohol that causes this'.[6] The respondent then told the victim to come and lie down with him, and she did as she was told.
[6] ts 153.
A few days later, the victim saw a doctor about her injuries. She told the doctor what had happened but asked the doctor not to make a record of the incident.
Prescribed offence 3: threat to harm and criminal damage
On an unknown date in October 2013, the victim and the respondent were in their lounge room. The respondent was angry and intoxicated. He verbally abused the victim and spat in her face, and he smashed photographs and ornaments. He then went outside and retrieved a shovel and an axe from a shed.
While he was in possession of the axe, the respondent grabbed hold of the victim's foot and told her that he was going to cut off her leg. The respondent, who was sweating and slurring his speech, then locked the front door, before smashing the victim's mobile telephone and pacing around holding the axe. The respondent eventually moved outside, still holding the axe, and continued drinking and smoking while he watched the victim through a window. The victim could see the respondent watching her and this made her very fearful, however, she eventually went outside and asked the respondent if he was okay. The respondent told her to go to bed, and she did.
Prescribed offence 4: threat to kill
In late February 2014, the respondent and the victim were at home. The victim decided to leave the house because the respondent was drunk and angry. However, the respondent told the victim she was not allowed to see her family again and he took her mobile telephone from her handbag.
When the victim realised that she could not leave the house because the front door was locked and bolted, she went to bed to try to avoid the situation escalating. The respondent then went outside, retrieved a speargun from a shed, and confronted the victim by pointing it at her from a distance of about two metres while she lay in the bed. The respondent said he would kill the victim before then killing himself.
The victim was very frightened, and she thought that she was going to die. She begged the respondent not to do it and said she would get him more help. The respondent said she was not worth it, left the bedroom, and went back to the shed where he stayed for several hours, drinking and smoking. Following this event, the victim stayed with her parents until she and the respondent reconciled the following month. The respondent gave the victim an apology card.
Previously charged offending in November 2015
In November 2015, the victim had gastric banding surgery. On one occasion, while she was recuperating from the surgery, the respondent repeatedly punched the victim and said that he would kill her. The respondent also picked up a coffee table and swung it at the victim. The victim sent a Facebook message to her sister and sister-in-law saying that she needed help, and they contacted the police. The respondent was charged with an offence of aggravated assault occasioning bodily harm, contrary to s 317 of the Code, and the victim obtained a violence restraining order against the respondent. The respondent pleaded guilty to this charge and was sentenced to a fine of $1000.
In December 2015, the victim and the respondent reconciled again.
In December the following year, the respondent attempted suicide. The victim found the respondent hanging by a noose. She lifted him up and screamed for help, and a neighbour assisted in getting him down. The respondent was taken to hospital, not breathing, and was resuscitated at the hospital.
Prescribed offence 5: assault occasioning bodily harm
On 2 December 2017, the victim was at home with the respondent when he became angry with the victim about issues relating to the custody of his son. The respondent forcefully grabbed the victim on her right arm, which resulted in bruising. The victim photographed these bruises and showed them to her manager at work, before seeking medical assistance.
When the respondent and the victim moved address in October 2018, the respondent continued to verbally abuse the victim on a regular basis. On one occasion in June 2019, neighbours called the police after hearing the respondent and the victim arguing. Police attended and issued the respondent with a 72‑hour police order, and he then left the property. A short while later, the respondent obtained the keys to the property from the victim, and he moved back in with her.
On 25 July 2019, after receiving assistance from a family violence unit, the victim obtained a violence restraining order from the Magistrates Court, which was served on the respondent on 26 July 2019. The respondent then left the victim's home, and she changed the locks.
On 31 August 2019, the victim agreed to meet the respondent at a motel, and they reconciled once again. On 4 September 2019, the violence restraining order was withdrawn and the respondent and the victim resumed their relationship, although the victim did not allow the respondent to return to live with her at that time.
Prescribed offence 6: act likely to endanger and common assault
On 22 September 2019, the respondent and victim were at the victim's home. Once again, the respondent was drunk and angry. He told the victim that if she ever left him again, there would be murders. The respondent put both of his hands around the victim's throat and shook her for about five seconds. The victim was unable to breathe. The respondent told the victim that he would slit her throat and smear her blood all over the wall for her mother to see. The respondent then took one hand off the victim's throat and poked her in the eye with his finger before walking outside, leaving the victim on the couch, shaking and in fear.
The following day, the victim sent the respondent a text message asking him to explain himself. The victim and the respondent then reconciled once again.
Prescribed offence 7: common assault and act likely to endanger
On 18 December 2019, the respondent was at the victim's home. The respondent had been drinking, and he became angry. The respondent approached the victim, who was in the loungeroom, and struck her on the arm with a sandal. The respondent then grabbed the victim's upper arms and shook her, and told her that she was pathetic and useless. The respondent also asked the victim for her mobile telephone, which she gave to him. The respondent then berated the victim.
On 21 December 2019, after she had been once again verbally berated by the respondent, the victim sent a text message to her mother and asked her to call the police. Police attended and issued the respondent with a 72‑hour police order.
The respondent and victim did not resume their relationship following this incident.
Several photographs were tendered during the sentencing proceedings. Those photographs showed the injuries to the victim's arm that had been caused during one of the incidents the subject of the charge. Other photographs were also tendered, which showed the shovel and the axe that the respondent had used during one of the other incidents.
Victim impact statement
The victim prepared a victim impact statement. She found compiling the statement to be a distressing experience.
In that statement, the victim spoke about how the respondent's behaviour had negatively affected her life. She said that when she first met the respondent, she was an independent and confident person who was excited about the life she had ahead of her. However, over time, the respondent's unpredictable and critical behaviour made her scared of him. Despite his promises to change, which the victim wanted to believe, the respondent's behaviour eroded the trust she had in herself and in other people. She gave up on her work and life ambitions and she became isolated and lonely. The victim also felt stuck in the relationship because she had assumed all the financial responsibilities of the relationship.
The victim wrote about feeling guilty because she had covered up for the respondent and had protected him from her friends and family. She felt ashamed because of his behaviour. The victim also wrote about the respondent's gaslighting behaviour by which he caused her to doubt herself and others.
The victim doubted that she would ever be able to have another relationship with a man, and she continues to live in fear of the respondent.
As the sentencing judge explained to the respondent, his offending has seriously affected the victim, and those effects were not resolved simply because he pleaded guilty.
Pre-sentence report
A pre-sentence report was prepared by a Community Corrections Officer for the purposes of sentencing. The writer of the report was highly critical of the respondent, noting that although he had engaged during his interview with her, he also consistently minimised or denied his violent behaviours. According to the report, the respondent thought that both he and the victim were to blame for the breakdown of their relationship, and he tended to focus on his own financial and mental strains. The respondent told the writer of the report that the threats he had made to kill the victim were made in 'jest', and that the victim 'knows his sense of humour'. He was also adamant that his behaviour throughout the relationship was a reaction to the victim's own behaviour, and he presented with 'a victim stance', claiming that the victim was financially abusive, jealous, and controlling.
The respondent said that he would be unlikely to benefit from a family violence program because he understood the dynamics of family violence. However, he agreed to attend such a program if directed, and expressed a willingness to continue to engage with services that supported his mental health and alcohol abuse issues. According to the writer of the report, the respondent presented with several 'protective factors', including stable accommodation, family support, employment and proactive engagement with mental health and substance abuse assistance.
The sentencing judge also had the benefit of an oral pre‑sentence report delivered by a Corrective Services employee, who provided information about whether the prison authorities were able to manage prisoners who were detoxifying from an alcohol addiction. According to the oral report, the respondent could expect to receive immediate medical support upon reception at the prison to assist in reducing the effects of withdrawal from alcohol. It was explained that there is a great risk that a person who is detoxifying from alcohol may suffer life‑threatening seizures. However, it was also explained that the prison authorities manage detoxification very well and that if something occurred that was beyond the expertise available in the prison, the person would be removed from the prison to receive the required specialist care. The sentencing judge was also informed that if the respondent was still experiencing chronic withdrawal symptoms at the end of the treatment provided in prison, the treatment would be extended until any symptomatology had passed.
The respondent would also have the opportunity to engage in group programs, such as Alcoholics Anonymous, whilst serving a sentence of imprisonment. However, her Honour was told that while prisoners have some access to an attending psychiatrist, the confidential prison counselling service was not operating other than in extreme cases. Her Honour was also informed that whether the respondent had access to the medication he had been prescribed for attention deficit hyperactivity disorder (ADHD) would be a decision for the prison doctor, but that non‑stimulant medications are preferred in the custodial environment. The sentencing judge was told that any difficulties that the respondent might experience from suddenly ceasing stimulant medication would be closely monitored.
Medical evidence
The respondent relied on several medical reports that were before the sentencing judge.
In a very brief report dated 5 December 2023, a consultant psychiatrist said that treatment had been provided to the respondent for diagnosed ADHD and that he had attended appointments on a regular basis.
The respondent's general practitioner provided a report dated 16 December 2023, in which he said that the respondent had been receiving assistance from the drug and alcohol clinical nurse at Fiona Stanley Hospital for the management of alcohol abuse. Those sessions commenced following the respondent's presentation to the emergency department on 19 October 2023, following a suicide attempt that occurred in the context of acute stress and alcohol misuse.
A clinical nurse specialist at the Addiction Prevention and Treatment Service at Fiona Stanley Hospital provided two reports, dated 12 November 2023 and 28 January 2024, respectively. According to the later of those two reports, the respondent had been regularly attending the service for assessment and treatment of his harmful alcohol use disorder since being referred by the hospital's emergency department on 13 October 2023. According to the nurse, the respondent had:[7]
demonstrated a determination to address triggers for his alcohol use and engaged with alcohol and other drug and mental health services for the improvement of both his psychological and physical wellbeing with measurable improvement in both domains.
[7] Report of T Sinclair, dated 28 January 2024.
The nurse also noted that if the respondent were to be incarcerated, he would need the assistance of the prison medical centre to deal with detoxification. Further, as he had been using dexamphetamines for about 25 years, the nurse explained that his use of the medication should not suddenly cease as it may result in a deterioration of his mental health and an increase in the risk of suicide.
Personal circumstances
The respondent was 52 years of age at the time of sentencing, and was between the ages of about 40 and 48 years during the period that he committed the offence. The sentencing judge found that the respondent had a relatively uneventful upbringing, and that his family were supportive.
The respondent has one child from a previous relationship. The sentencing judge appeared to find that one of the reasons for the 'stresses in the relationship' with the victim were the issues the respondent was having in relation to making arrangements for having contact with, and providing support for, that child.
The respondent finished school after year 11 and began working in an electrical trade. He had a stable employment history, and his current employer described him as thorough and diligent.
The respondent had been an alcoholic for a long time, although there had been some periods of abstinence in his life. The sentencing judge noted that the respondent had been making efforts to reduce his alcohol intake. However, even at the time of sentencing, which occurred over four years after his relationship with the victim had finally ceased, the respondent was still drinking alcohol every day.
Her Honour also observed that the respondent had not made any efforts to obtain treatment for emotional regulation and to deal with his use of violence towards women. As a result, the sentencing judge expressed some doubt about whether the respondent appreciated that the underlying reasons for his offending were not limited to his abuse of alcohol.
The sentencing judge accepted that the respondent had ADHD and anxiety issues, and that he was first diagnosed with depression when he was 28 years of age. Her Honour also noted that the respondent had previously made serious suicide attempts, most recently in October 2023.
The respondent has a criminal record, which included offences of aggravated common assault and aggravated assault occasioning bodily harm, as well as several convictions for offences of breaching a violence restraining order. A number of those offences were committed during the period the respondent persistently engaged in family violence against the victim. Further, one of the offences of breaching a violence restraining order was committed in June 2022, which was not long after the end of that period. The respondent's conviction for aggravated common assault and conviction for breaching a violence restraining order related to another woman with whom he had a previous relationship.
The sentencing judge was provided with some written character references from the respondent's employer, as well as from his current partner and her daughter, all of whom said positive things about the respondent.
Sentencing remarks
The sentencing judge commenced her remarks by making findings about the factual basis of the offence. As we have already summarised those findings earlier in these reasons, there is no need to repeat them here.
While reciting her findings about the acts the subject of the first prescribed offence, her Honour made the following observations:[8]
But you heard my discussion with [defence counsel], which is that this offence is a combined offence. Which reflects an overall relationship of violence. And it's not to be considered by me by simply dissecting each of the little one thing, or two things, that are in the facts - or eight or 10 things in the facts - and looking at them in isolation. This charge directs me to look at things not in isolation, to not look at the harm caused just by one little thing in isolation. But to look at the harm and the offending in its broader context.
Which reflects what modern thinking is about domestic violence, is that it is a combined harm over a relationship. Which is often multi-faceted involving physical injuries from time to time, threats, and emotional injuries, and emotional harm, and emotion coercion and aggression. So I can't just look at it and dissect it, but I need to look at it in a global way.
But it is important to look at it in part of what underlies the offence because the level of physical violence, and the level of injury, and the level of threats is something I need to take into account.
It's fair to say that this type of offence is always serious, given its nature. But as difficult it might be for some people to understand, my job is to look at where this offending falls in the scale of seriousness for the potential of this type of offending.
[8] ts 152.
After setting out her findings about the respondent's offending conduct, the sentencing judge then noted that although that conduct had occurred over about eight years, the respondent had taken no real steps to change his behaviour. Her Honour also noted that the offending took place in the context of a family relationship, although she reminded herself that the offending was not aggravated on that account because it was, in effect, an element of the offence.
The sentencing judge found that the violence used by the respondent was 'towards the lower end of the scale in terms of physical violence and physical outcomes for the victim',[9] although her Honour also said that this did not mean that it was 'at the lowest end', and accepted that there were 'aspects of [his] offending that [were] degrading to the victim'.[10] She also noted that the respondent's threats invoked fear in the victim, and his use of weapons was a serious aspect of the offending. The sentencing judge had regard to the victim impact statement and concluded that the impact on the victim had been 'far ranging'.[11]
[9] ts 157.
[10] ts 158.
[11] ts 159.
The sentencing judge also made findings about the respondent's personal circumstances, which we have already summarised earlier in these reasons.
After referring to the pre-sentence report and noting that it did not 'paint a flattering picture of [the respondent]', her Honour found that the respondent was at a high risk of re-offending, having regard to his abuse of alcohol, his mental health issues, and his treatment needs. Her Honour also noted that there was a need to impose a punishment on the respondent that deterred him from behaving in this way again.
The sentencing judge took into account the fact that the respondent had pleaded guilty and afforded him a 12% discount on the sentence she would otherwise have imposed in accordance with s 9AA of the Sentencing Act 1995 (WA). Her Honour was prepared to accept that there was 'an aspect of remorse'[12] based on the respondent's plea of guilty and on the submissions that had been made on his behalf by his counsel. She also took into account the fact that the respondent was making some efforts to deal with his alcohol abuse, and the fact that he was otherwise a useful member of the community having particular regard to his work history.
[12] ts 166.
Her Honour made mention of the fact that the respondent would need to detoxify from his abuse of alcohol while he was in custody serving his sentence. As her Honour's findings about this issue are the subject of ground 1 in the appeal, it is necessary to set out the relevant parts of her Honour's remarks in full:[13]
I will take into account that your initial time in custody if [I] sentence you to a term of imprisonment will be difficult. No doubt detoxifying from alcohol is going to be an incredibly scary, challenging and medically dangerous thing.
Doing it in custody is probably one of the worst places anyone could imagine to have to go through that. No doubt you'll be vulnerable for that period of time, in pain and scared and hurting [in] a custodial environment, particularly if you've never been sentenced to imprisonment before which you have not will be a very difficult place to go through that.
I am told that the prison will manage that as best as they can. It seems to be different in relation to how it would occur if you were in the community. The State says I have no evidence that it will be more difficult. I don't accept that submission.
I can as a matter of absolute common sense accept that it must be the worst place or one of the worst places to detoxify and it's not just whether or not it's medically more difficult, but whether it will be emotionally and mentally more difficult.
If one is detoxifying in the community one doesn't have to worry about their own safety. In the prison environment when they're at their most vulnerable as one might have to in a prison environment, that's just one way in which it would be a lot harder.
So what I'm told, though, is that the physical detoxification, it might take five, 10, even if it's 15 days, [is] going to be a short period of time comparative to what a sentence might be, but it's only going to be one part of withdrawing from alcohol.
There's obviously the long-term counselling and support you'll need. Whilst the prison will have programs such as [Alcoholics Anonymous] and instructive programs, it is very disappointing to hear that there is no counselling service available in the prison so I'm prepared to take into account as a mitigating factor that your time in custody in terms of your detoxification will be more onerous and that your rehabilitation will be more onerous than if you had been in the community.
Now, that doesn't mean it's going to be more onerous than for other prisoners. No doubt you're not the only person who might go to prison with a history of alcoholism and tragically a very large part of the prison population has addiction issues and they're all no doubt suffering from the lack of services in prison, but I accept that it will be harder than being in the community to detoxify.
[13] ts 166.
Her Honour concluded her sentencing remarks by noting that there was a need to impose a sentence on the respondent that gave effect to the need for both personal and general deterrence. She also took into account the need to impose a sentence that adequately punished the respondent and provided a measure of protection for the community. She then imposed a sentence of 2 years and 3 months' immediate imprisonment. The respondent was made eligible to be considered for release on parole, and a lifetime restraining order was made pursuant to s 63 of the Restraining Orders Act.
Grounds of appeal
The State relies on two grounds of appeal, which are in the following terms:
1.The sentencing judge erred in fact by finding that the respondent's time in custody would be more onerous on account of his detoxification from alcohol than if he had been in the community.
2.The sentence of 2 years, 3 months' immediate imprisonment is manifestly inadequate, having regard to:
(a)the maximum penalty for the offence of persistent family violence of 14 years' imprisonment;
(b) the serious nature of the offence and the circumstances in which it was committed;
(c)the personal circumstances of the respondent;
(d) the need for the sentence to adequately reflect general and personal deterrence, as well as appropriate punishment for offending of this nature; and
(e) the requirement that the sentence be consistent with the standards of sentencing customarily observed for offending of this type.
For reasons that will become clear, it is convenient to commence with ground 2.
Ground 2
Relevant principles
The appellant contends that the sentence of 2 years and 3 months' imprisonment imposed on the respondent was manifestly inadequate. The principles to be applied in those circumstances are well established and were recently re-stated in The State of Western Australia v Pereira:[14]
The principles to be applied in the context of grounds of appeal in which the State asserts that error should be inferred from a resulting sentence are well established. Those principles, which need not be repeated, were comprehensively summarised in The State of Western Australia v Hussian [[2020] WASCA 186 [88] ‑ [97]; [132] - [134]] … It is sufficient to once again observe that in determining whether an individual sentence is manifestly inadequate, the court is required to examine it in light of the prescribed maximum penalty, the standards of sentencing customarily observed in relation to the relevant offence, the place that the offending occupies on the scale of seriousness for offences of the type in question, and the offenders' personal circumstances.
…
It must always be borne in mind that the issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently. The critical question is whether a sentence, or a total effective sentence, is unreasonable or plainly unjust. Further, in the context of a State appeal against sentence, as a majority in the High Court in Green v The Queen [[2011] HCA 49; (2011) 244 CLR 462 [1]] explained, the main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons. (footnotes omitted)
[14] The State of Western Australia v Pereira [2023] WASCA 162 [42] - [43].
In relation to the principles to be applied when imposing a sentence for an offence involving the use of violence in the context of a domestic or other intimate relationship, particularly against women, this court said in The State of Western Australia v Chungarai:[15]
There is no doubt that the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them, means that general deterrence is an important sentencing consideration in offences of this kind. In Bropho v Hall [[2015] WASC 50 [16]], Mitchell J (as his Honour then was) discussed the impact of the aggravating factor of an assault committed in the context of a domestic relationship. His Honour rightly said:
'An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing in mind a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.' (footnotes omitted)
Submissions
[15] The State of Western Australia v Chungarai [2021] WASCA 147 [57], quoting Duncan v The State of Western Australia [2018] WASCA 154 [40]. See also Gomboc v The State of Western Australia [2023] WASCA 115 [190] ‑ [193]; The State of Western Australia v Riley [2024] WASCA 11 [44].
The State argues that the objective seriousness of an offence contrary to s 300 of the Code is not measured solely by reference to the level of violence used by an offender, or by reference to the seriousness of any injuries inflicted. The State says that this is because any 'act of family violence' and any resulting injuries, which might otherwise constitute a 'prescribed offence', will usually fall towards the lower end of the scale of seriousness when compared to other more serious offences, such as unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, when they are considered in isolation. However, the State submits that this is by design. In that regard, the State refers to what was said by the Hon Attorney General in his second reading speech when the FVLR Bill was introduced into Parliament:[16]
An 'act of family violence' is defined to be an act that would constitute one of the defined 'prescribed offences' that fall within the scope of the persistent family violence offence, being offences that are most commonly committed in circumstances of family violence. Serious offences that can be charged only on indictment have been excluded from the scope of the offence, as those offences are of such a serious nature that they ought to be charged, prosecuted and punished in their own right … The offence captures a wide range of conduct and, accordingly, it is an either-way offence[.]
[16] White appeal book, 24 (emphasis in original), citing an extract from Western Australia, Parliamentary Debates, Legislative Assembly, 27 November 2019, (The Hon J R Quigley), 9427b ‑ 9432a, [2].
The State argues, in effect, that the seriousness of an offence contrary to s 300 falls to be assessed by reference to the range of acts and the consequences of those acts that are capable of attracting criminal liability under that provision. It is submitted that the offending targeted by s 300 is the repeated and persistent use of violence and intimidation (including violence directed at property) that occurs in the context of family relationships, regardless of whether the acts result in the infliction of significant physical injury. The State submits that as domestic violence can also result in psychological injury and emotional trauma, the seriousness of an offence contrary to s 300 depends on more than the physical injuries that a victim may have suffered as a consequence of an individual instance of violence.
The State submits that the offence committed by the respondent was at least in the mid-range of seriousness for an offence contrary to s 300 of the Code, having particular regard to the significant number of 'acts of family violence', as well as the long period of time over which, and the broader context in which, the offence was committed. In that regard, the State relies on the fact that the sentencing judge found that the acts constituting the offence reflected a relationship marred by violence, which were representative of a broader course of conduct that continued despite violence restraining orders and police orders. The State also draws attention to the seriousness of several of the 'acts of family violence' constituting 'prescribed offences', including those that involved non‑fatal strangulation, the use of weapons, and those that degraded the victim.
The State submitted that notwithstanding the absence of any truly comparable case, other cases in which sentences have been imposed for different offences committed in circumstances of domestic violence were of some utility in determining whether the sentence imposed in this case was broadly consistent. In that regard, the State referred to Drage v The State of Western Australia;[17] Duncan v The State of Western Australia; Gillespie v The State of Western Australia;[18] Gomboc v The State of Western Australia; Iveson v The State of Western Australia;[19] McCombe v The State of Western Australia;[20] Pureau v The State of Western Australia;[21] The State of Western Australia v Chungarai; and The State of Western Australia v Riley.
[17] Drage v The State of Western Australia [2021] WASCA 6.
[18] Gillespie v The State of Western Australia [2016] WASCA 216.
[19] Iveson v The State of Western Australia [2005] WASCA 25.
[20] McCombe v The State of Western Australia [2016] WASCA 227.
[21] Pureau v The State of Western Australia [2017] WASCA 115.
Ultimately, the State says that the sentence of 2 years and 3 months' imprisonment that was imposed on the respondent is unreasonable or plainly unjust.
The respondent submits that the sentence was not manifestly inadequate, notwithstanding the fact that the offence involved acts that would have terrified the victim and that some of his conduct was degrading.
The respondent also submits, in effect, that none of the cases referred to by the State in its written submissions can be described as broadly comparable, noting that this court is yet to determine an appeal in which a sentence imposed for an offence contrary to s 300 of the Code is said to be manifestly excessive or inadequate, and submits that none of those cases assist the State's argument that the sentencing judge erred in the exercise of her discretion.
On behalf of the respondent, it is noted that the respondent pleaded guilty, there were several protective factors present at the time of sentencing that were in his favour, and the respondent was suffering from several medical issues. Further, the court's attention was drawn to the fact that the respondent had been on bail for a considerable period before sentencing, and he had not committed any offences during that time.
Merits of ground 2
Having regard to the terms of s 300 and its relevant context, the following (non‑exhaustive) matters emerge that, depending on the facts and circumstances of each individual case, will ordinarily be relevant in assessing the seriousness of an offence of persistently engaging in family violence.
Firstly, a person can only be convicted of an offence contrary to s 300(1) of the Code if they are in a close and intimate relationship with the victim: they must be in a 'designated family relationship' as defined in s 299(1). Having regard to the definition of a 'designated family relationship', the victim of an offence contrary to s 300(1) is likely to have reposed a level of trust in the offender. Further, the victim is likely to have been emotionally or financially dependent (or both) on the offender to some degree, depending on the level of commitment to, and the intimacy that existed in, the relationship over the relevant period.
Secondly, because the 'acts of family violence' that are required for a person to have persistently engaged in family violence are those acts that would otherwise constitute a 'prescribed offence', it is necessary to observe that such offences do not include more serious offences of violence that can only be dealt with on indictment, such as grievous bodily harm (s 297) and acts or omissions with intent to harm (s 304(2)). Further, although the terms of s 300(1) suggest that an act constituting a 'prescribed offence' must be an act of personal violence, not all of the prescribed offences referred to in s 299(1) are of that character. For example, an offence contrary to s 221BD of the Code is concerned with the distribution of intimate images, and an offence contrary to s 444(1)(b) of the Code is an offence of wilful and unlawful destruction or damage of property, committed in circumstances of aggravation.
According to the explanation given in the relevant Explanatory Memorandum that accompanied the FVLR Bill:
The prescribed offences are those offences that are commonly committed by perpetrators against a person with whom they are in a family relationship. The prescribed offences do not include any offences that are indictable only. Indictable only offences are of such a serious nature that they ought to be charged and convicted in their own right. Further, it is more likely that serious indictable only offences will be supported by medical and other corroborating evidence, such that issues related to the inability of the victim to particularise the circumstances are less likely to arise.
This means that the gravity of an offence contrary to s 300 will not necessarily depend on and may not be informed to any significant extent by, the seriousness of any physical injuries suffered by a victim. The seriousness of an offence contrary to s 300 is to be determined in light of the limited range of acts that are capable of amounting to an 'act of family violence'. Further, in assessing the seriousness of an offence contrary to s 300 of the Code, it must be appreciated that the gravity of any physical injuries is not the only litmus test; it will often be very important to also pay close attention to any psychological injury and emotional trauma that may have been suffered.
Thirdly, as is the case with offences contrary to s 321A of the Code,[22] an offender is to be sentenced and punished for the whole course of criminal conduct, which is the essence of the criminality involved in the offence proscribed by s 300. However, and for reasons similar to those expressed by Vandongen JA in XBX v The State of Western Australia,[23] this does not mean that an appropriate sentence for the purpose of an offence contrary to s 300 falls to be determined by reference to any individual or total effective sentences that might otherwise have been imposed had the various 'acts of family violence' been the subject of individual charges. Pursuant to s 6(2)(a) of the Sentencing Act, when sentencing a person for an offence contrary to s 300, it is the maximum penalty of 14 years' imprisonment that is to be taken into account in determining the seriousness of a particular offence, and not the maximum penalties that may have applied, or the sentences that may have been imposed, had the offender been convicted of any of the relevant 'prescribed offences'. Further, a sentence imposed in another case for a single 'prescribed offence', or even several individual 'prescribed offences', will not ordinarily be a useful comparator for the purposes of assisting in the determination of an appropriate sentence for an offence contrary to s 300.
[22] AJ v The State of Western Australia [2016] WASCA 13 [54] (Mitchell J). See also XBX v The State of Western Australia [55] (Mazza JA), [122] (Vandongen JA).
[23] XBX v The State of Western Australia [122], in the context of an appeal concerning a sentence imposed for an offence contrary to s 321A of the Code.
Fourthly, given the potentially very wide range of circumstances in which an offence contrary to s 300 of the Code may be committed, coupled with inevitable variations in the personal circumstances of the perpetrators and victims of such an offence, sentences imposed in other cases are unlikely to provide any real assistance in determining an appropriate sentence. Each case must be determined according to its particular facts and circumstances, and by having regard to all relevant sentencing factors.
Fifthly, the maximum penalty for the offence of persistently engaging in family violence of 14 years' imprisonment reflects the serious view that Parliament has taken of such conduct.
Sixthly, the following matters will often be relevant to the court's assessment of the seriousness of an offence against s 300 of the Code:
1.The length of the period over which the victim was subjected to persistent family violence.
2.The frequency with which the victim was subjected to family violence within that period.
3.The nature of the acts of family violence to which the victim was subjected.
4.The psychological impact of the persistent family violence upon the victim, including the impacts of constant psychological stress that may be involved in living with a person whose acts of family violence are unpredictably spasmodic.
5.The physical impacts of the persistent family violence upon the victim.
6.The degree of dependence of the victim upon the offender, and any limits on the ability of the victim to extricate themselves from the situation.
7.The extent to which the acts of persistent family violence were intended or likely to have the effect of trapping the victim in the violent relationship or deterring the victim from leaving the relationship.
The above list is not intended to be exhaustive, or to identify factors which will be relevant to consider in every case of an offence against s 300 of the Code.
Against that background, it is necessary to consider the seriousness of the offence committed by the respondent.
The respondent pleaded guilty to an offence that alleged that he persistently engaged in family violence against his wife over a lengthy period of approximately eight years. During that time, the respondent regularly verbally and physically abused his wife. As the sentencing judge appeared to accept, the many specific instances on which the State alleged that the respondent committed acts of family violence were just representative of a 'much broader picture and relationship that involved abuse, and physical and verbal violence, and threats, and aggression'.[24]
[24] ts 151. This appeared to be conceded by the respondent's counsel at sentencing: ts 85.
As appears to be all too common in cases of domestic violence, the respondent's behaviour tended to follow a cyclical pattern. The respondent's acts of family violence would generally occur at night, and in private, behind the closed doors of the home they shared together. They would also usually occur when the respondent was very drunk. The respondent would frequently verbally and physically abuse the victim, and he made a number of terrifying threats. On occasions, the respondent would engage in controlling behaviour, including by telling the victim that she was not allowed to see her family again, by taking the victim's mobile telephone away (and by smashing it), and by locking her inside their home. The respondent would usually apologise at some later point, after the effects of the alcohol had worn off, and make what would then turn out to be empty promises to the victim that the abuse would never happen again.
Some of the acts of family violence that were specifically relied on by the State were extremely serious. On one occasion, the respondent held a kitchen knife to the victim's throat and threatened to kill her. This must have been a horrific experience for the victim, particularly as the respondent made it very clear that he intended to carry out his threat. The two separate occasions on which the respondent, while intoxicated and angry, threatened to cut off one of the victim's legs with an axe, and then when he pointed a speargun at the victim at close range, would also have been very terrifying experiences. Although the respondent was ultimately sentenced on the basis that the speargun was unloaded at the time he pointed it at the victim, she was unaware of that at the time.
On a further occasion, the respondent told the victim that if she ever left him again there would be murders, before he then strangled her and threatened to slit her throat and smear her blood all over a wall for her mother to find. Although the respondent held the victim by her throat for a relatively short period of time, she was unable to breathe. The victim must have felt extremely concerned about her welfare.
In MYB v The State of Western Australia, the following observations were made about the seriousness of offences that involve non‑fatal strangulation:[25]
Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life‑threatening. The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future severe domestic violence and a relatively common cause of domestic violence‑related homicide.
In Pedrochi [v Brown [2021] WASC 81 [64]], Quinlan CJ referred to the growing appreciation of the particular dangers associated with offences involving strangulation and its role in cases of intimate and family violence. The recognition of the particular dangers posed by non‑fatal strangulation in incidents of domestic violence has resulted in the introduction of the specific offence of strangulation, with which this appellant was charged on count 1 [s 298 of the Code]. However, as there was a second, separate instance of strangulation that comprised part of the series of acts committed with intent to harm, contrary to s 304(2)(a) of the Code, a recognition of the seriousness and danger of non‑fatal strangulation was also a relevant sentencing consideration in respect of count 2, with which ground 1 of this appeal is concerned.
In his Second Reading Speech in respect of the Bill that introduced s 298 of the Code, the Attorney General referred to research which reveals that strangulation, when committed against an intimate partner, is one of the strongest indicators of an increased risk of homicide. The Attorney General went on to describe strangulation as a 'perversely intimate and callous form of violence', which is often used by a perpetrator to convey to his victim that he has the power to take her life away. Observations to this effect have also been made by intermediate appellate courts in a number of other jurisdictions, including Queensland, Tasmania and New Zealand. Those cases also recognise that the need for deterrent punishment arises, not just from the physical and psychological harm which frequently results from an act of strangulation, but also from its inherently dangerous nature and the strong likelihood that, if it is repeated, death or serious injury may eventually result.
[25] MYB v The State of Western Australia [2024] WASCA 53 [64] - [66].
It should be noted that during the period the respondent committed the offence, the act of strangulation was not an 'act of family violence' for the purposes of s 300 of the Code on the basis that it would otherwise have constituted an offence contrary to s 298 of the Code. This is because s 298 did not commence operation until 1 October 2020.[26] However, the act of strangulation was nevertheless an 'act of family violence' because it would otherwise constitute an offence contrary to s 304(1), as it was an act the result of which the life, health or safety of the victim was, or was likely to be, endangered. However, this does not detract from the general applicability of what was said in MYB.
[26] See s 300(10) of the Code.
Although it is true that the victim did not suffer from any very serious physical injuries, this is to be expected given the limited range of acts of family violence that can constitute an offence contrary to s 300. Had the respondent committed more serious offences than any of the prescribed offences referred to in s 299(1) of the Code, it would be expected that he would have been charged with those offences separately. While the seriousness of the victim's physical injuries was a relevant consideration, the essential gravamen of the respondent's criminality is that for over an extended period of time, he repeatedly committed acts of family violence which included an act of strangulation and the use of weapons to make very serious threats. The respondent subjected the victim to an extended period of psychological terror which, due to the unpredictably spasmodic nature of the acts of family violence, would not be confined to the occasions on which violence occurred.
As we have already observed, it is important to recognise that repeated and persistent acts of domestic violence do not always result in physical injuries, and that offences that do not result in physical injuries are not, on that account, automatically less serious. In this case, the victim impact statement very clearly illustrates the pernicious effect of sustained domestic violence in general and, more specifically, the enduring and deleterious effect the respondent's behaviour has had on the victim's psychological and emotional wellbeing.
The respondent's criminal conduct amounted to a gross breach of the trust and commitment the victim had invested in him, and the intimacy she had bestowed upon him. That breach materialised itself repeatedly and over a very long period of time. The respondent did not change his ways when he was charged with and pleaded guilty to an offence of aggravated assault occasioning bodily harm that he committed against the victim in November 2015. Further, the respondent's violent and intimidatory conduct did not abate after September 2019, when the victim withdrew a violence restraining order she had obtained in July 2019.
The nature of many of the respondent's acts of persistent family violence were such as to be likely to make it very difficult for the victim to leave the relationship. They appear to have been designed to make the victim terrified of the potential consequences of attempting to leave the respondent. On the different occasions particularised above, the respondent told the victim it was no longer her choice whether she lived, and he threatened to kill the victim before killing himself. He told the victim he would slit her throat and smear her blood over the wall for her mother to see. The victim could reasonably fear that an attempt to leave the relationship would trigger a dangerous escalation in the respondent's violence towards her.
There was nothing in the respondent's personal circumstances that could properly be regarded as mitigating. The only mitigating factor of any substance was the respondent's plea of guilty. In that regard, the sentencing judge afforded the respondent a discount of 12% on the sentence she would otherwise have imposed had the respondent been found guilty after trial, and before taking into account any other mitigating factors, pursuant to s 9AA of the Sentencing Act. The appellant does not challenge the extent of that discount, notwithstanding that the respondent entered a plea of guilty on the morning of the first day of his trial. By that stage, the State had fully prepared the matter for trial and the victim would have endured many hours of proofing, having already spent a great deal of time anticipating the need to give evidence and being unable to properly move on with her life. Although the plea of guilty meant that there were benefits to the State and to the victim, particularly as she did not then have to give evidence, a discount of just under half the maximum discount allowable for a plea of guilty might be regarded as generous.
We note that, when a court exercises its discretion under s 9AA of the Sentencing Act, there is a need to be mindful of the possibility that offenders who have repeatedly committed offences of violence against their partners, while engaging in manipulative and controlling behaviour, may delay pleading guilty for the purpose of testing whether the victim of this behaviour will persevere with their allegations and give evidence after a long period of reflection. The offender may also seek to use delay to exercise control and to perpetuate the suffering of the victim. To afford significant discounts for pleas of guilty entered in those kinds of circumstances can have the effect of undermining the purpose of s 9AA of the Sentencing Act. However, in the present case the State did not contend, and the sentencing judge did not find, that the respondent delayed his plea for those purposes. Accordingly, nothing we have said in this regard should be understood as amounting to a criticism of the sentencing judge's approach in the present case.
As we have already observed, the sentencing judge took into account, as a mitigating factor, the fact that the respondent's 'time in custody in terms of [his] detoxification will be more onerous and that [his] rehabilitation will be more onerous than if [he] had been in the community'.[27] This finding is challenged by the State under ground 1. The State contends that the sentencing judge erred in fact in making this finding.
[27] ts 167.
It is not necessary for us to reach any conclusions about the merits of that contention. As will be seen, this is because we are of the view that the sentence imposed on the respondent was manifestly inadequate, even after taking her Honour's finding into account as a mitigating factor. Further, as is explained below, the fact that the respondent's treatment for alcoholism would be more difficult in custody than in the community is not a mitigating factor which should decrease the culpability of the respondent or decrease the extent to which he should be punished. We will deal further with the sentencing judge's findings about the conditions the respondent was likely to experience while serving his sentence in more detail later in these reasons.
This is the first occasion on which this court has been required to consider an appeal against a sentence imposed for an offence of persistently engaging in family violence contrary to s 300 of the Code. However, as was noted in McAlpine v The State of Western Australia:[28]
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. (citations omitted) (footnotes omitted)
[28] McAlpine v The State of Western Australia [2018] WASCA 195 [54].
As we have already recorded earlier in these reasons, the State referred to several cases in its written submissions and suggested that they may provide some assistance as comparators for the purpose of deciding whether the sentence imposed in this case was broadly consistent with standards of sentencing. It is unnecessary to summarise the facts and circumstances of those cases, or the sentences that were imposed. This is because none of those cases are even broadly comparable. A fundamental difference between the circumstances of this case and all of those cases is that the respondent was charged with one offence, relating to a course of conduct that took place over an extended period of time. To the extent that any of the cases referred to by the State concerned a course of conduct, the acts constituting the relevant offending were the subject of separate charges each one of which attracted a discrete maximum penalty. In this case, the respondent was liable to a single maximum penalty of 14 years' imprisonment. However, we acknowledge that, to the extent possible, inconsistency with sentences imposed in a broader class of offending that involves a 'prescribed offence', as defined in s 299(1) of the Code, should be avoided.[29] Accordingly, and in that regard, we have taken all those cases into account.
[29] See XBX v The State of Western Australia [100] (Hall JA), in the context of sentencing for offences contrary to s 321A of the Code.
It has been said on many occasions that general deterrence is an important consideration when sentencing for violent offences committed by men against women, including in domestic environments. In this context, there has been a 'firming up' of sentences for offences committed in those circumstances.[30] The same approach should be taken with offences committed contrary to s 300.
[30] MYB v The State of Western Australia [61].
There was also an obvious need to ensure that any sentence imposed in this case had the effect of deterring the respondent from committing similar offences in the future and, to the extent possible, that it protected the community.
In our view, having regard to the maximum penalty that is prescribed, the seriousness of the offence, the very limited mitigation that was available, and the respondent's personal circumstances, the sentence of 2 years and 3 months' imprisonment was unreasonable or plainly unjust. The sentence was so inadequate such that it must be inferred that the sentencing judge made a material error in the exercise of her sentencing discretion. A significantly higher sentence should have been imposed.
Accordingly, ground 2 has been made out.
Ground 1
As we have concluded that the sentence imposed on the respondent was manifestly inadequate, and for the further reasons that appear below in the context of resentencing, it is unnecessary to determine ground 1.
Residual discretion
The respondent argues that this court should invoke its residual discretion and dismiss the appeal, notwithstanding our conclusion that the sentencing discretion miscarried. As explained in Green v The Queen,[31] the residual discretion usually falls to be exercised when the guidance that this court might otherwise provide to sentencing courts is limited, and a decision to allow a prosecution appeal will result in injustice to a convicted person who is required to respond to such an appeal. Before this court will allow a prosecution appeal against sentence and move to impose a heavier sentence on the offender, not only must the State establish that the sentencing judge fell into appellable error, but the State must also negate any reason why the residual discretion should be exercised. The respondent does not bear any onus in establishing that the residual discretion should be exercised in his favour.[32]
[31] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).
[32] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [54] ‑ [67] (Kiefel, Bell & Keane JJ).
Although the respondent does not bear any onus, he relies on the Additional Evidence to support a submission that the residual discretion should be exercised in favour of dismissing the State's appeal. In that regard, the respondent relies on the evidence that is contained in an affidavit sworn by him on 15 May 2024, and on an affidavit sworn by his solicitor and counsel on 16 May 2024.
In the respondent's affidavit, he deposes to the following matters:
(1)Since he has been in custody, the respondent has not been given any medication that is prescribed for his ADHD.
(2)The respondent has experienced several seizures due to his enforced withdrawal from alcohol, although the precise number of seizures and the period over which they occurred is unclear. As a result of these seizures the respondent was transferred to the Critical Care Unit (CCU) for a period of four days, where he was only allowed out of his cell for a total period of approximately 30 minutes.
(3)While in CCU the respondent injured his left wrist. He believes that he has fractured his wrist and that he needs an operation. The respondent has also endured other medical issues including abdominal pain that he has experienced after he was assaulted by another prisoner, and the removal of a large mass from his back. Some of his health issues have required medical attention outside the prison. One of his visits to hospital was particularly distressing.
(4)The respondent has found incarceration very difficult for several reasons. He feels depressed and anxious, and he says that he has 'recurring symptoms of obsessive compulsive disorder'.
Attached to the affidavit of the respondent's solicitor and counsel are a series of medical records relating to the respondent's period of incarceration. Those records do not make it clear whether the respondent's wrist was in fact fractured, although they do indicate that there are some issues relating to the ligaments in his left hand and he has injured his left little finger. Further, a biopsy that was taken from the mass on his back showed that '[t]he margins are clear, with the lesion lying more than 5 mm from the closest deep and side margins'.
For the reasons we have already given, the State has established that the sentence imposed on the respondent was manifestly lenient. Further, as this is the first occasion on which this court has considered an appeal against a sentence imposed for an offence of persistent family violence, contrary to s 300 of the Code, significant guidance is likely to be provided to sentencing judges. In any event, we are of the view that this appeal should be allowed to maintain adequate standards of sentencing because the sentence that was imposed in this case fell substantially below the range of sentences that were reasonably open to the sentencing judge in the exercise of her sentencing discretion.
Further, although the respondent has endured several health issues while in custody serving his sentence, there is nothing in the material before us that suggests that he will suffer any injustice if the appeal was allowed and the sentencing discretion were to be re‑exercised.
Resentencing
We have the necessary information to resentence the respondent.
As we have already explained, the offence committed by the respondent was very serious. Apart from the plea of guilty, there were no other mitigating factors of any significance.
While, as we have noted, a discount of 12% for the purposes of s 9AA of the Sentencing Act may be regarded as generous, it has not been challenged by the appellant. It was open to her Honour to give that discount in all of the circumstances of the case. In those circumstances, we will apply the same discount allowed by the sentencing judge in exercising the sentencing discretion afresh.[33]
[33] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.
We noted earlier in these reasons at [74] that the sentencing judge took into account as a mitigating factor the fact that the respondent's 'time in custody in terms of [his] detoxification will be more onerous and that [his] rehabilitation will be more onerous than if [he] had been in the community'[34] (the impugned finding). By ground 1, the State argued that the sentencing judge erred in fact in making the impugned finding because there was an insufficient evidentiary basis.
[34] ts 167 (emphasis added).
It is unnecessary to decide whether the sentencing judge did make an error of fact. This is because, in exercising the sentencing discretion afresh, we would not take the impugned finding into account as a mitigating factor in any event.
As Buss JA (as his Honour then was) explained in Milenkovski v The State of Western Australia,[35] in determining the sentencing outcome in a particular case, a sentencing judge must take into account, amongst other things, any subjective circumstances of an offender (as distinct from the prison conditions in which the offender is held) that may make imprisonment a materially harsher experience for the offender than for offenders generally. Those subjective circumstances include, relevantly, physical, or mental ill-health or disabilities.
[35] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [104] ‑ [106] (Buss JA), [213] (Mazza JA).
For present purposes, the important point is that the relevant comparison to be made is between the day‑to‑day experience of the offender while in custody as against the day‑to‑day experiences of other offenders in the general prison population.[36] In reaching the impugned finding, the sentencing judge did not engage in that comparison. Instead, her Honour compared the experience the respondent was likely to have while serving a sentence of imprisonment with the experience he might otherwise have had if he had remained in the community. In fact, her Honour specifically found that the respondent's custodial experience would not be more onerous than it would be for other prisoners, noting that 'a very large part of the prison population has addiction issues and they're all no doubt suffering from the lack of services in prison'.[37]
[36] The King v Hatahet [2024] HCA 23 [65] (Beech‑Jones J).
[37] ts 167.
In our view, the impugned finding is not a mitigating factor for the purposes of s 8(1) of the Sentencing Act. The fact that the respondent's detoxification and rehabilitation would be more onerous than if he had been in the community is not a factor that decreases the extent to which he should be punished. Further, the Additional Evidence does not establish, on its own or in combination with the evidence that was before the sentencing judge, that imprisonment will be a materially harsher experience for the respondent than for offenders generally. Although the respondent has suffered from seizures due to alcohol withdrawal while he has been in custody, and he has endured several other unrelated medical issues, there is no suggestion that the respondent has not been adequately treated by the prison authorities or that imprisonment has been or will be a materially harsher experience for him when compared to the rest of the prison population. While the respondent's state of health is relevant for the purposes of resentencing as it forms part of his personal circumstances, it is not a mitigating factor that decreases the extent to which he should be punished.
Given that conclusion, it is not necessary to give consideration to the larger question of whether an offender who has committed offences while under the influence of alcohol or drugs (or both), and who has failed to take reasonable steps to address any underlying addiction while in the community, should receive a discount on an otherwise appropriate sentence of immediate imprisonment because of the onerous effects of experiencing enforced withdrawal from the use of such substances while in custody.
Considering all the relevant facts and circumstances, including the current state of the respondent's health as revealed by the Additional Evidence, the relevant sentencing principles that we have referred to earlier in these reasons, and allowing the same discount that the sentencing judge afforded for the respondent's plea of guilty, we are of the view that the respondent should be resentenced to a term of 5 years and 8 months' imprisonment.
That sentence should be taken to have commenced on 31 January 2024. An order should also be made that the respondent is eligible for parole.
Orders
1.The appeal is allowed.
2.The sentence imposed by the District Court for the offence charged in IND 1766 of 2021 is set aside.
3.The respondent is resentenced to 5 years and 8 months' imprisonment.
4.The sentence is backdated to commence on 31 January 2024.
5.The respondent is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Honourable Justice Vandongen
3 JULY 2024
20
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