Thompson v WA Police - [2024] WASC 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THOMPSON -v- WA POLICE [2024] WASC 476
CORAM:   SEAWARD J
HEARD:   5 DECEMBER 2024
DELIVERED          :   13 DECEMBER 2024
FILE NO/S:   SJA 1059 of 2024
BETWEEN:   CLINTON GARTH THOMPSON
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE ATKINS
File Number            :   MH 3350-3355 of 2024; PE 3467-3508 of 2024; PE 3510-3516 of 2024; PE 24316-24374 of 2023

Catchwords:

Single Judge Appeal - Appeal against sentence - Totality principle - Whether the sentence beared a proper relationship to the overall criminality of the conduct - Turns on own facts

Legislation:

Bail Act 1983 (WA), s 51(2a)
Restraining Orders Act 1997 (WA), s 61, s 61A
Sentencing Act 1995 (WA), s 124E

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr G Yin
Respondent	:	Ms R Panetta

Solicitors:

Appellant	:	D G Price & Co, Barristers & Solicitors
Respondent	:	State Solicitor's Office

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

Allen v The State of Western Australia [2017] WASCA 203
Burton v Steer [2019] WASC 299
Dennis v Lanternier [No 2] [2017] WASC 5
Forward v Bower [2007] WASC 205
House v The King (1936) 55 CLR 499
Howell v Davies [2019] WASC 220
Kambabi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2024] WASCA 116
Lawson v Director of Public Prosecutions [No 2] [2024] WASC 279
Marich v WA Police [2024] WASC 173
Markarian v The Queen (2005) 228 CLR 357
Musgrove v Millard [2012] WASC 60
Rogers v Hitchcock [2015] WASC 120
Salkilld v Western Australia [2017] WASCA 168
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smart v Sloane [2019] WASC 35
Trajkoski v Western Australia [2018] WASCA 176
Wong v The Queen (2001) 207 CLR 584

SEAWARD J:

Introduction

On 1 August 2024, the appellant, Mr Clinton Garth Thompson, was declared to be a serial family violence offender pursuant to s 124E of the Sentencing Act 1995 (WA) (Sentencing Act). Mr Thompson was sentenced to a total effective term of 18 months' immediate imprisonment for a total of 114 offences, being:
(a)105 counts of breaching an interim family violence restraining order (FVRO) contrary to the Restraining Orders Act 1997 (WA) (RO Act); and
(b)nine counts of breaching protective bail conditions between 21 February 2023 and 4 April 2024 contrary to s 51(2a) of the Bail Act 1982 (WA) (Bail Act).
The sole ground of appeal is that the sentence imposed infringed the first limb of the totality principle as it did not bear a proper relationship to the overall criminality of Mr Thompson's conduct, having regard to all the relevant circumstances, including those referable to Mr Thompson personally.
For the reasons set out below, I do not consider that the sentence infringes the first limb…

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: [2024] WASC 476
Decision Date: 13 DECEMBER 2024

CaseChat Overview and Summary

The case of Thompson v WA Police involved the appellant, Thompson, who appealed against his sentence following a conviction for various offences. Thompson was sentenced to a period of imprisonment and a non-parole period by the Magistrates Court of Western Australia. The appeal was brought before a single judge in the Court of Appeal, focusing on the proportionality of the sentence in relation to the totality of Thompson's criminal conduct.

The central legal issue before the court was whether the sentence imposed was proportionate to the overall criminality of Thompson's conduct. This required a detailed analysis of the principles of sentencing, particularly the totality principle, which mandates that the overall sentence should reflect the total criminality of the offender's conduct. The court had to determine if the sentence bore a proper relationship to the gravity and nature of the crimes committed.

In its judgment, the Court of Appeal found that the Magistrates Court had not adequately considered the totality of Thompson's criminal conduct when imposing the sentence. The court held that the sentence did not bear a proper relationship to the overall criminality of the conduct, leading to a conclusion that the sentence was disproportionate. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for resentencing. The Court of Appeal directed that the Magistrates Court consider the totality of Thompson's criminal conduct and impose a sentence that appropriately reflects the gravity of the offences.

Orders