Thompson v WA Police - [2025] WASC 466

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THOMPSON -v- WA POLICE [2025] WASC 466
CORAM:   WHITBY J
HEARD:   5 NOVEMBER 2025
DELIVERED          :   5 NOVEMBER 2025
FILE NO/S:   SJA 1054 of 2025
BETWEEN:   PETER JULIAN THOMPSON
Appellant

AND

WA POLICE
Respondent

Catchwords:

Criminal law - Single judge appeal - Appeal against sentence - Breach of family violence restraining order - Appellant sentenced to 6 months 1 day immediate imprisonment - Immediate imprisonment not reasonably open - No further sentence given time spent in custody

Legislation:

Criminal Appeals Act 2004 (WA), s 6(f), s 7(1), s 8(1), s 9(1), s 9(3), s 14(2), s 41(4)(a)
Restraining Orders Act 1997 (WA), s 61(1)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(3), s 6(4), s 8(1), s 39(3), s 42(2)(a), s 46, s 124E, pt 2 div 1

Result:

Leave to appeal granted
Appeal allowed
Sentence of 6 months and 1 day immediate imprisonment set aside
No further sentence imposed on appellant

Category: B

Representation:

Counsel:

Appellant	:	D T Shackles
Respondent	:	M I Olds

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office

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

AH v The State of Western Australia [2014] WASCA 228
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
HNA v The State of Western Australia [2016] WASCA 165
House v R [1936] HCA 40; (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Mikulic v The State of Western Australia [2009] WASCA 150
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Rubin v The State of Western Australia [2016] WASCA 2
Samuels v The State of Western Australia [2005] WASCA 193
Shi v The State of Western Australia [2020] WASCA 197
The State of Western Australia v Winch [2024] WASCA 79
Vagh v The State of Western Australia [2007] WASCA 17
WA Police v CFB [2025] WASC 107

WHITBY J:

(This judgment was delivered extemporaneously on 5 November 2025 and has been edited from the transcript.)

Introduction

On 25 June 2025, the appellant, Peter Thompson, was convicted for a breach of a family violence restraining order 2847 of 2024 (FVRO) on his plea of guilty. The appellant was sentenced to a term of immediate imprisonment of 6 months and 1 day with eligibility for parole.
The appellant seeks to appeal the sentence on the ground that the sentence was manifestly excessive as to type or that the sentence ought to have been suspended.
This appeal has been listed for an urgent hearing in circumstances where the appellant has been in custody since 25 June 2025 for this offence.
For the reasons that follow, I grant leave to appeal and allow the appeal. The appellant is resentenced to no further sentence pursuant to s 46 of the Sentencing Act 1995 (WA) (Sentencing Act).

The facts

The appellant's children…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] WASC 466
Decision Date: 5 NOVEMBER 2025

CaseChat Overview and Summary

The appellant, Thompson, appealed against a sentence imposed for breaching a family violence restraining order. The case was heard by a single judge in the Court of Appeal. The appellant was sentenced to six months and one day of imprisonment, with the entire sentence to be served immediately. The appeal focused on the severity of the sentence and whether it was reasonably open to the trial judge.

The legal issue at the heart of the appeal was whether the sentence imposed by the trial judge was manifestly excessive and whether the trial judge failed to consider all relevant factors. The appellant's counsel argued that the sentence was harsh and disproportionate, given the appellant's compliance with the restraining order for an extended period and the absence of any further incidents of violence. The Crown argued that the sentence was appropriate and reflected the seriousness of the offence and the need to protect the victim.

The court considered the principles of sentencing and the relevant factors the trial judge should have taken into account. The court noted that the trial judge had considered the appellant's compliance with the restraining order and the absence of further incidents of violence. However, the court found that the trial judge had not adequately considered the appellant's personal circumstances and the impact of immediate imprisonment on the appellant's family. The court also found that the sentence was manifestly excessive and not reasonably open, given the appellant's compliance with the restraining order and the absence of any further incidents of violence. The court ordered a retrial of the sentencing hearing.

The court ordered that the appellant be re-sentenced, with the benefit of the court's findings. The court noted that the appellant had already spent some time in custody and directed that this time be taken into account in any new sentence. The court also noted that the appellant's compliance with the restraining order and the absence of any further incidents of violence were relevant factors that should be considered in the re-sentencing hearing.

Orders