WA Police v CFB - [2025] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WA POLICE -v- CFB [2025] WASC 107
CORAM:   MCGRATH J
HEARD:   6 NOVEMBER 2024
DELIVERED          :   7 APRIL 2025
FILE NO/S:   SJA 1026 of 2024
BETWEEN:   WA POLICE
Appellant
AND
CFB
Respondent

FILE NO/S: SJA 1030 of 2024
BETWEEN: CFB
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1026 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE MAIO
File Number            :   JO 1394 of 2023
For File No:   SJA 1030 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE MAIO
File Number            :   JO 1394 OF 2023

Catchwords:

Criminal law - Breach of family violence restraining order - Appeal against conviction - Admissibility of interview - Whether appellant a suspect - Whether Criminal Investigation Act2006 (WA) breached - Miscarriage of justice - Whether verdict unreasonable or unsupported by the evidence - Prosecution appeal against sentence on basis of manifest inadequacy - Appeal against failure to order prosecution costs

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)

Result:

SJA 1026 of 2024

Leave to appeal granted on grounds 1 and 2
Appeal allowed
Fine of $200, suspended for 6 months, set aside and in lieu thereof a fine of $750, suspended for 6 months, imposed
Order that no costs be made set aside and in lieu thereof the respondent pay the appellant's costs in the amount of $4,566.30
Respondent pay the costs of the appellant on appeal in the amount of $2,131

SJA 1030 of 2024

Extension of time in which to appeal granted
Leave to appeal not granted on grounds 1, 2, 3 and 4
Appeal dismissed
Appellant pay the costs of the respondent on appeal in the amount of $2,131

Category: B

Representation:

SJA 1026 of 2024

Counsel:

Appellant	:	Mr E Heywood & Mr S J Cobbett
Respondent	:	Ms R Sleeth

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Rebekah Sleeth

SJA 1030 of 2024

Counsel:

Appellant	:	Ms R Sleeth
Respondent	:	Mr E Heywood & Mr S J Cobbett

Solicitors:

Appellant	:	Rebekah Sleeth
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

Bardsley v The Queen (2004) [2004] WASCA 251; 29 WAR 338
Basham v City of Joondalup [No 2] [2016] WASC 120
CMB v Attorney General for New South Wales [2015] HCA 9
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
EXF v The State of Western Australia [2015] WASCA 118
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jago v The State of Western Australia [2022] WASCA 2
Kabambi v The State of Western Australia [2019] WASCA 44
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nair v Walter [2022] WASC 18
Rogers v Hitchcock [2015] WASC 120
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Gibson [2014] WASC 240
The State of Western Australia v Olive [2011] WASCA 25
Tsang v Francis [2021] WASCA 131
Van Arkel v Tordoff [2020] WASC 153
Wells v The State of Western Australia [2017] WASCA 27

MCGRATH J:

Introduction

CFB appeals his conviction, after trial, of one charge of breaching a family violence restraining order (FVRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (RO Act). In turn, the prosecution appeals the sentence imposed on CFB, being a fine of $200, suspended for 6 months, contending that the sentence is manifestly inadequate. Further, the prosecution appeals the decision of the learned Magistrate not to order costs for the prosecution though successful at trial.
For the purposes of distinguishing the parties to the two appeals, I will refer to the appellant in SJA 1026 of 2024 and respondent in SJA 1030 of 2024 as the prosecution.
CFB seeks an extension of time in which to appeal. An appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.[1]
[1] Criminal Appeals Act 2004 (WA) s 11(3).
CFB was sentenced on 28 March 2024 and therefore, the 28‑day period within which to bring the appeal expired on 26 April 2024. The appeal notice was filed on 4 June 2024. Accordingly, CFB requires an extension of time in which to appeal. In support of the application for an extension of time in which to appeal CFB relies upon the affidavit of Ms Sleeth, legal practitioner, affirmed 5 November 2024. Ms Sleeth deposes that upon the prosecution appealing sentence, instructions were received to appeal the conviction.
The court will grant an extension of time to appeal if it is in the interests of justice to grant the extension. There is no rigid formula that necessarily constrains the way in which that task is approached.[2] In considering whether it is in the interests of justice to grant an extension of time, the factors which may generally be considered are the length of the delay, the reasons for the delay, the prospects of the applicant succeeding in the appeal and the extent of any prejudice suffered by the respondent.[3]
[2] Bardsley v The Queen (2004) [2004] WASCA 251; 29 WAR 338 [108] (Wheeler JA); Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [13].
[3] See EXF v The State of Western Australia [2015] WASCA 118 [8].
The prosecution submits that there will be no particular prejudice suffered as a consequence of the delay and the granting of an extension of time in which to appeal. In this instance, the prevailing factor is the prospect of CFB succeeding in the appeal.
For the following reasons, I have determined that whilst an extension of time in which to appeal is granted, leave to appeal against the conviction is not granted and thereby, the appeal is taken as dismissed. I allow the appeal against the sentence and the decision not to grant costs to the prosecution.

Magistrates Court proceedings

On 24 October 2023, CFB appeared before her Honour Magistrate De Maio for his trial.
At the commencement of the trial, CFB, represented by counsel, made the following admissions:[4]
(a)On 31 October 2022, the Perth Magistrates Court made FVRO 5097/2022.
(b)The person protected by the FVRO was the complainant.
(c)CFB was the person bound by the FVRO.
(d)On 1 November 2022, CFB was served with the FVRO at his home address.
(e)Among other conditions, it was a condition of the FVRO that CFB must not approach or remain within 50 m of the complainant; and
(f)On 11 November 2022, the FVRO was in force.
[4] ts 2 ‑ 3 (24/10/2023); Exhibit 1 admissions pursuant to s 32 of the Evidence Act1906 (WA).
The FVRO, which was received in evidence, is relevantly, in the following terms:
PART A: ORDERS. EXCEPT AS SET OUT IN PART B YOU MUST NOT:
…
communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS text messages or any other electronic means.
behave in an intimidatory, offensive or emotionally abusive manner towards the Person Protected,
harass the Person Protected by an electronic means, including by using the internet and any social network application (such as "facebook") to depict or refer in any manner to the Person Protected,
enter or remain upon [address redacted] or any other premises where the Person Protected lives or works or is educated or be within 50 metres of the nearest external boundary of those premises,
enter upon the street and adjoining road reserve known as [address redacted],
approach or remain within 50 metres of the Person Protected,
approach or remain within 10 metres of any property (including vehicles) of, or under the control of, the Person Protected,
prevent or hinder the Person Protected from attending at [address redacted] in the company of a police officer for the purposes of recovering personal or other property,
distribute or publish, or threaten to distribute or publish, any images or videos of the Person Protected,
monitor the movement or communications of the Protected Person,
At trial the prosecution called two witnesses, namely the complainant and Senior Constable Baker, the police investigating officer. The prosecution tendered as an exhibit CCTV footage showing movements of CFB at the shopping centre,[5] and an electronic record of interview conducted with CFB (the EROI).
[5] Exhibit 3.
At trial the issue of the admissibility of the EROI was subject to extensive submissions.[6] On 28 March 2024, Magistrate De Maio determined that the EROI was to be received into evidence.[7] The issue of the admissibility of the EROI is the subject of the conviction appeal.
[6] ts 78 ‑ 88 (24/10/23).
[7] ts 2 ‑ 7 (28/03/2024); Exhibit 4.
During the opening address, the prosecutor stated that the main issue at trial was whether CFB's actions in departing the shopping centre at the bottom of a travelator amounted to approaching or remaining within 50 m of the complainant. The learned Magistrate was satisfied beyond a reasonable doubt that CFB breached the FVRO.

Appeal

The notice of appeal in respect to SJA 1030 of 2024, which concerns the conviction appeal by CFB, pleaded three grounds of appeal. At the hearing of the appeal, counsel made application to rely upon a further ground of appeal. I granted leave for CFB to rely upon that further ground as ground 4 in his appeal against conviction. Therefore, the grounds of appeal are as follows:
1.That the court of summary jurisdiction made an error of law and fact in convicting the appellant of this offence.
2.That the court of summary jurisdiction made an error of law and fact in admitting the appellant's electronic record of interview into evidence in the trial.
3.That there has been a miscarriage of justice.
4.The verdict of the learned Magistrate was unreasonable and/or contrary to the evidence in that:
(a) once off the travelator, the respondent did not prove beyond a reasonable doubt that the distance between the appellant and Protected Person reduced;
(b)the respondent did not prove beyond a reasonable doubt that the appellant was doing anything other than moving away from the Protected Person; and
(c)therefore, the respondent did not prove beyond a reasonable doubt that the appellant 'approached' or 'remained' within 50 metres of the Protected Person.
The notice of appeal in respect to SJA 1026 of 2024, being the prosecution's appeal against sentence and the failure to order costs, provides:
1.The sentence imposed by the learned Magistrate was so inadequate so as to manifest error, having particular regard to:
a.the maximum penalty for the offence;
b.the circumstances in which the offence was committed;
c.the need for the sentence to adequately reflect general deterrence as well as appropriate punishment for offending of this nature;
d.the respondent's personal circumstances; and
e.the requirement that the sentence be consistent with the standards of sentencing customarily observed for offending of this nature.
2.The learned Magistrate erred in law in refusing to make an order that the respondent pay all or part of the appellant's costs, given that:
a.the appellant was a successful party to the prosecution and, subject to the Official Prosecutions (Accused's Costs) Act 1973 and section 67 of the Criminal Procedure Act 2004 (CPA), was entitled to his costs under section 67(1) of the CPA;
b.the Magistrate's discretion under section 67(2) of the CPA was confined to the determination of the amount of the costs to be paid by the respondent; and
c.there were no circumstances giving rise to a discretion to refuse to award costs to the appellant under section 67(4) of the CPA.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[8] An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[9]
[8] Criminal Appeals Act 2004 (WA) s 9(1).
[9] Criminal Appeals Act s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[10]
[10] Criminal Appeals Act s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[11]
[11] Criminal Appeals Act s 14.
In considering the grounds of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is congruent with consistency of approach and as accords with the statutory regime that applies.[12]

SJA 1030 of 2024

[12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

I now turn to appeal SJA 1030 of 2024.
The four grounds of appeal may be distilled into two complaints. First, the learned Magistrate erred in law in admitting into evidence the EROI. Second, the verdict is unreasonable or cannot be supported by the evidence.
I turn first to whether the learned Magistrate erred in law in respect to admitting into evidence the EROI.

Ground 2 - Admissibility of EROI

CFB contends that whilst he was informed of his rights under s 28 of the Criminal Investigation Act (CI Act) the police failed to inform him of his rights under s 137 and s 138 of the CI Act and thereby, the learned Magistrate erred in law in admitting the EROI into evidence.
Section 28 of the CI Act relevantly provides:
28.Persons accompanying officers to be informed of rights
(1)An officer who requests a person who is not in lawful custody to accompany the officer or another officer for the purposes of assisting in the investigation of an offence must inform the person and be satisfied that the person understands -
(a)that he or she is not under arrest; and
(b)that he or she does not have to accompany the officer concerned; and
(c)that if he or she accompanies the officer concerned, he or she is free to leave at any time unless he or she is then under arrest.
Section 115 of the CI Act defines 'suspect' to mean a person suspected of having committed an offence, whether or not he or she has been charged with the offence.
Section 128(2) of the CI Act provides that a police officer or a public officer may arrest a person for a serious offence if the officer reasonably suspects that the person has committed, is committing, or is just about to commit, the offence. A serious offence includes an offence under s 61 of the RO Act.
Sections 137 and 138 of the CI Act provide:
137.Arrested people, rights of
(1)In this section -
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)This section applies to a person who has been arrested by an officer, no matter under what authority or written law.
(3)The arrested person is entitled -
(a)to any necessary medical treatment; and
(b)to a reasonable degree of privacy from the mass media; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
138.Arrested suspects, rights of
(1)In this section -
arrested suspect means a person who is under arrest having been arrested -
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
(b)under the Criminal Investigation (Extraterritorial Offences) Act 1987;
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)In addition to the rights in section 137 an arrested suspect is entitled -
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
(4)An officer may refuse an arrested suspect his or her right to communicate or to attempt to communicate with a person if the officer reasonably suspects that the communication would result in -
(a)an accomplice taking steps to avoid being charged; or
(b)evidence being concealed, disturbed or fabricated; or
(c)a person's safety being endangered.
Section 155 of the CI Act provides that, although evidence may be inadmissible, the court may nevertheless decide to admit the evidence. Section 155 states:
155.Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3) In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.

Relevant testimony regarding the EROI

The relevant testimony regarding the EROI was given by Senior Constable Baker.[13]
[13] ts 43 ‑ 78 (24/10/2023).
Senior Constable Baker gave testimony that he contacted CFB and requested that he attend at the Joondalup Police Station for the purpose of participating in an interview. Senior Constable Baker stated that he informed CFB that he would not be arrested but that he would be provided with his accompanying person rights under s 28 of the CI Act.

Subsequently, CFB attended at the Joondalup Police Station for his EROI and was afforded a support person who was in attendance. At the commencement of the EROI, Senior Constable Baker informed CFB of his rights and expressly gave him a caution. Senior Constable Baker stated that at no point did he arrest CFB to avoid causing any undue stress to him.[14] At the commencement of the EROI, Senior Constable Baker informed CFB of his accompanying person rights under s 28 of the CI Act.[15]
[14] ts 57 (24/10/2023).
[15] ts 57 (24/10/2023).
In cross‑examination, Senior Constable Baker confirmed that one week prior to attending at the Police Station, CFB had informed him that one of his prerequisites to agreeing to an interview was that he would speak to a lawyer first.[16] Senior Constable Baker stated that he assumed that, given CFB attended at the Police Station without a lawyer and that he was not arrested, he had decided freely to give the interview.[17]
[16] ts 73 (24/10/2023).
[17] ts 73 (24/10/2023).
During cross‑examination, Senior Constable Baker confirmed that he reasonably suspected CFB of having committed an offence at the time he commenced the interview.[18] Senior Constable Baker stated that he had decided not to arrest CFB due to concerns regarding his mental health.[19]
[18] ts 74 (24/10/2023).
[19] ts 74 (24/10/2023).
Accordingly, Senior Constable Baker was asked whether, in circumstances where he had formed the opinion that CFB was a suspect, he now accepted that he should have afforded CFB his rights under s 137 and s 138 of the CI Act. Senior Constable Baker stated that, in circumstances where CFB was not arrested and freely attended at the Police Station for the EROI, it was not necessary to afford CFB his rights that would arise if he had been an arrested person.[20]

Reasons of Magistrate regarding admissibility of EROI

[20] ts 75 (24/10/2023).

The learned Magistrate observed that an arrested suspect has considerably more rights pursuant to s 137 and s 138 of the CI Act. Consequently, the arresting officer has a statutory obligation to advise CFB of those rights. In contrast, s 28 of the CI Act does not afford the accompanying person the right to speak to a lawyer for the reason that he is not under arrest and he may simply refuse to accompany the police, or is free to leave at any time.[21]
[21] ts 3 (28/03/2024).
The learned Magistrate observed that CFB was afforded most of his rights. The learned Magistrate stated that although the police proceeded in the manner that they believed was appropriate because of CFB's health circumstances, once the investigating officer had formed a reasonable suspicion that CFB may have committed a serious offence, he ought to have proceeded by way of s 128 of the CI Act.[22] Her Honour stated that doing otherwise deprived CFB of his fundamental rights that would have applied if he had been formally arrested.
[22] ts 4 (28/03/2024).
Having made that finding, her Honour turned to consider s 155 of the CI Act to determine whether the EROI was admissible. Whilst the learned Magistrate did not particularise precisely the breach of the CI Act which enlivened s 155, there are two breaches which are relied upon. First, the failure of the investigating officer to arrest CFB when the officer had formed a reasonable suspicion that CFB had committed a 'serious offence'. Second, the failure of the investigating officer to afford CFB his rights under s 137 and s 138 of the CI Act.
The learned Magistrate determined that in the exercise of her discretion under s 155 of the CI Act, the EROI was admissible. Her Honour found that the admissions made in the EROI were 'clearly admissible.'
Her Honour observed that CFB was a serving police officer and that he had been informed by Senior Constable Baker that it was not proposed to arrest him, but that he was invited to attend to participate in the interview. The learned Magistrate found that the contravention of the CI Act was not reckless, but was done with a clear objective of accommodating CFB's mental health and in consideration of his employment with the WA Police.
Further, CFB had clearly considered whether or not to seek legal advice and one week later attended for the purpose of the interview. The learned Magistrate stated CFB was 'well aware of his rights to speak to a lawyer' and in fact declared that he would do so even though he was not under arrest when the police first made contact with him.[23]
[23] ts 5 (28/03/2024).
At the commencement of the EROI, CFB was informed that he was not under arrest and that he need not participate in the EROI and may desist at any time.[24] The learned Magistrate stated that CFB had the knowledge and experience to be fully cognisant of the consequences of being interviewed under caution and he chose not to leave the interview room nor express the desire again to delay speaking to the police until he was able to speak to his lawyer.[25] The learned Magistrate observed that in the early stages of the EROI, CFB exercised his right not to answer any questions and that his responses were coherent and presented in a logical narrative. Her Honour observed that CFB did not appear to be in any way confused or intimidated and interacted with the officer freely and without reservation. There was no imbalance of power between the interviewer and CFB.[26]
[24] ts 5 (28/03/2024).
[25] ts 6 (28/03/2024).
[26] ts 6 (28/03/2024).
Accordingly, the learned Magistrate, after carefully considering all relevant factors, stated that CFB's participation in the EROI was voluntary, and that there was no unfairness to him.[27]

Assessment ground 2 - Admissibility of EROI

[27] ts 7 (28/03/2024).

The gravamen of ground 2 is that the learned Magistrate should not have admitted the EROI pursuant to s 155 of the CI Act. The complaint of CFB appears to be that the right he was denied was the reasonable opportunity to communicate or attempt to communicate with a legal practitioner. However, as I have outlined, CFB discussed obtaining legal advice with Senior Constable Baker during the week prior to the EROI.
The prosecution submits that s 137 and s 138 of the CI Act had no application given that the police had determined not to arrest CFB. The prosecution submits that the power under s 128 of the CI Act is discretionary and that an officer who forms a reasonable suspicion that a person has committed an offence is not required to arrest that person.[28] In any event the learned Magistrate did not err in admitting the EROI pursuant to s 155 of the CI Act.
[28] Prosecution's submissions on appeal [52] - [54].
It is clear that Senior Constable Baker had sufficient evidence for him to form the reasonable suspicion that CFB had committed a breach of the RO Act. Having formed that suspicion the appropriate course would ordinarily be to arrest the suspect, afford him his rights under s 137 and s 138 of the CI Act and to record the interview. I am satisfied that Senior Constable Baker decided not to arrest CFB for sound reasons that he believed were in the best interests of CFB. CFB relies upon The State of Western Australia v Gibson to support the contention that he should have been arrested and afforded his rights. In that decision, the police officer did not arrest CFB in circumstances where the officer had sufficient facts to form the opinion that CFB was a suspect.
The prosecution submits that The State of Western Australia v Gibson has no application to the present facts. Rather, that judgment concerns the appropriateness of the conduct of the officers in that particular case. In The State of Western Australia v Gibson, Hall J observed that the failure of the police officer not to treat CFB as a suspect had very significant consequences. The suspect's interview was not recorded and he was not afforded his right to an interpreter and to a lawyer.[29]
[29] The State of Western Australia v Gibson [2014] WASC 240 [45].
However, The State of Western Australia v Gibson illustrates the inherent difficulty with police officers interviewing suspects and not affording the suspect his rights under s 137 and s 138 of the CI Act because the officer has decided not to arrest the suspect.
The preferred course for Senior Constable Baker to have taken would have been to afford CFB his rights under s 137 and s 138 of the CI Act.
In any event, the gravamen of the appeal is whether the learned Magistrate erred in admitting the EROI pursuant to s 155 of the CI Act. Her Honour's reasoning, as I have outlined, was a detailed analysis of all factors and circumstances that must be taken into account. Having done so, the learned Magistrate determined that the desirability of admitting the EROI outweighed the undesirability of admitting the EROI. Her Honour was correct in that finding.
Accordingly, leave to appeal is not granted on ground 2.

Grounds 1, 3 and 4 - Whether verdict is unreasonable or cannot be supported by the evidence

By grounds 1, 3 and 4 it appears that CFB is agitating the same issue being that the verdict of the learned Magistrate is unreasonable or cannot be supported by the evidence. The grounds conflate. Ground 1 is that the court made an error of law and fact in convicting CFB. Ground 3 is that there has been a miscarriage of justice whilst ground 4 pleads that the verdict is unreasonable or cannot be supported by the evidence. The gravamen of CFB's contention is that the learned Magistrate erred in finding CFB to have 'approached' or 'remained' within 50 m of the complainant on the proper construction of those terms in the FVRO as he exited the car park of the shopping centre and proceeded to his vehicle.

Relevant principles - grounds 1, 3 and 4

By ground 1, CFB contends that the verdict of the learned Magistrate is unreasonable or unsupported by the evidence.
The High Court,[30] and the Court of Appeal,[31] have outlined the principles that apply in determining whether a verdict is unreasonable or cannot be supported by the evidence in the context of appeals from a jury verdict.
[30] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
[31] Wells v The State of Western Australia [2017] WASCA 27 [13]; Jago v The State of Western Australia [2022] WASCA 2.
The Court of Appeal, in Jago v The State of Western Australia, summarised the relevant principles applicable to a conviction before a jury as follows:[32]
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt that CFB was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about CFB's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with, the primary responsibility of determining guilt or innocence, and the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(5)The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of a complainant was assessed by the jury to be credible and reliable. The question for the appeal court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted, or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8)The setting aside of a jury's verdict on the ground that it is unreasonable is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at the trial.
[32] Jago v The State of Western Australia [2022] WASCA 2 [144].
These principles concerning whether a verdict that is unreasonable or cannot be supported by the evidence apply to a verdict of guilty entered after a trial before a judge alone or before a magistrate.[33]

The Magistrate's reasoning and evidence received at trial

[33] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [12] (French CJ, Bell, Keane & Nettle JJ), [82] (Gageler J); The State of Western Australia v Olive [2011] WASCA 25 [44] (Buss JA with whom McLure & Mazza JJA agreed).

I turn to the evidence received at trial and the reasoning of the learned Magistrate.
The relevant testimony was outlined by her Honour in her reasons for decision. I do not understand that there is any complaint by CFB in respect to the learned Magistrate's outline of the relevant testimony, rather the findings are impugned.
The CCTV footage from the shopping centre was central to the prosecution case. As the complainant was leaving the shopping centre, she can be observed in the CCTV footage stepping on to a travelator which takes patrons to an underground car park. Approximately 20 to 30 seconds later, CFB is observed in the CCTV footage approaching the travelator from another direction and boarding the travelator whilst the complainant is still travelling downwards towards the exit.
As the complainant reaches the bottom of the travelator, the CCTV footage shows that she proceeds out through the only exit at the base of the travelator to the underground car park. CFB then also proceeds through the same exit.
The complainant is then observed in the CCTV footage walking to her vehicle which is parked only a short distance from the exit at the bottom of the travelator. CFB is then observed coming through the door shortly afterwards and walking parallel to the complainant along a pathway alongside a row of parked cars. The prosecution case was that CFB became aware of the complainant's presence on the travelator after he had entered the travelator but that by continuing through the exit after her, at a distance well within the 50 m prohibition, CFB breached the FVRO. The prosecution case was that at all material times CFB was within 50 m of the complainant and thereby in breach of the FVRO.
Her Honour found that the complainant and CFB were, inadvertently, at the shopping centre at the relevant time.[34] At trial, there was no suggestion that CFB attended the shopping centre knowing that the complainant was in attendance. The learned Magistrate stated that the only issue at trial was whether CFB breached the FVRO at the time he exited the travelator in the shopping centre and then made the decision to continue walking through the exit where he knew the complainant was situated with her vehicle.[35]
[34] ts 27 (28/03/24).
[35] ts 27 (28/03/24).
The prosecution case was that CFB breached the FVRO after leaving the travelator and proceeding through the car park where the complainant was situated. By so doing, the prosecution contended CFB approached or, more relevantly, decided to remain within the 50 m prohibtion. The defence case was that CFB did not approach or remain within 50 m of the complainant. Rather, he took the most direct path past and away from the complainant in order not to breach the condition of the FVRO.
The learned Magistrate found that whilst at the shopping centre, CFB observed the complainant go into Kmart but did not follow her into that shop nor make any gestures.[36] Subsequently, the complainant observed CFB as she left Kmart but, whilst he looked at her, he did not approach.[37] The complainant gave evidence that she observed CFB at various times whilst moving around the shopping centre.
[36] ts 26 (28/03/2024).
[37] ts 26 (28/03/2024).
Subsequently, CFB boarded a travelator in the shopping centre that was moving towards the car park area. Upon entering that travelator, CFB observed the complainant. The learned Magistrate found that at the point that CFB observed the complainant it was too late to get off the travelator. Further, the learned Magistrate found that CFB was on the travelator in order to get to his motor vehicle which was parked in the car park and the travelator was the most logical and best exit pathway to use for that purpose.
The learned Magistrate outlined the salient parts of CFB's EROI.[38] Whilst on the travelator CFB observed the complainant. Upon reaching the bottom of the travelator, CFB stated that there was no other viable route to get to his vehicle other than to walk past the complainant's vehicle. Therefore, CFB continued through the exit at the bottom of the travelator.
[38] ts 27 (28/03/2024).
The learned Magistrate observed that the complainant gave testimony that there was another route but that it appeared to be a circuitous route.[39] However, the learned Magistrate observed that the prosecution did not lead any evidence as to the layout of the shopping centre and the car park area.[40] Therefore, her Honour concluded that she was unable to make any findings as to whether or not there were other routes open to CFB to get to his vehicle.
[39] ts 27 (28/03/2024).
[40] ts 27 (28/03/2024).
The learned Magistrate accepted that CFB was not monitoring the movements of the complainant.[41] However, upon leaving through the exit, his attention was focused on the complainant and the complainant's vehicle was 'immediately apparent upon exiting or shortly after'.[42] The learned Magistrate stated that CFB breached the FVRO by continuing to proceed towards the complainant when entering the car park from the bottom of the travelator. By so doing, at that point, he was within the 50 m prohibition imposed by the FVRO. The learned Magistrate, applying the reasoning in Nair v Walter,[43] found that it could not be sensibly suggested that CFB did not deliberately or intentionally approach the complainant and further, he most certainly remained within the 50 m prohibited zone.[44]
[41] ts 27 (28/03/2024).
[42] ts 28 (28/03/2024).
[43] Nair v Walter [2022] WASC 18.
[44] ts 28 (28/03/2024).
The learned Magistrate found that CFB was in distress and whilst doing his best not to breach the FVRO, by his decision to proceed outside, he did so.[45] The learned Magistrate found that as soon as CFB walked out of the exit he was focused on the complainant and the children. The learned Magistrate referred to the CCTV footage which showed CFB 'constantly looking over' at them.[46]

Assessment of grounds 1, 3 and 4

[45] ts 29 (28/03/2024).

[46] ts 28 (28/03/2024).

The terms of a FVRO in the context of proceedings under s 61(1) of the RO Act against a person who is bound by the FVRO and allegedly commits an offence against s 61(1) of the RO Act by breaching that order, are to be construed in a similar manner to the terms of an injunction in the context of contempt proceedings for breach.[47]
[47] Tsang v Francis [2021] WASCA 131 [109]; Nair v Walter [2022] WASC 18 [47].
Relevant legal principles were considered by the Court of Appeal in TsangvFrancis.[48] The terms 'approach' and 'remain' bear their ordinary and natural meaning understood in the context of the FVRO. The ordinary and natural meaning of the phrase 'approach or remain within 50 metres of the Person Protected' in Part A of the FVRO is that the qualification 'within 50 metres of the Person Protected' applies to 'approach' as well as 'remain'.[49]
[48] Tsang v Francis [2021] WASCA 131.
[49] Tsang v Francis [2021] WASCA 131 [116].

In Tsang v Francis, the Court of Appeal observed that 'the appellant did 'remain' within 25 metres of the Protected Person by moving towards and speaking to the Protected Person'. The appellant did not leave immediately when the Protected Person and another entered the registry.
In the context of the FVRO, CFB remained within 50 m of the complainant because he did not immediately increase the distance between himself and the complainant.
By following the complainant, CFB consciously and deliberately approached or remained within 50 m of the complainant. Accordingly, on the facts as found by the learned Magistrate, her Honour did not err in finding that CFB remained within 50 m of the complainant, which he was prohibited from doing under the FVRO. There was ample evidence to establish that CFB remained within 50 m of the complainant.
I agree with the prosecution's submission that CFB's reliance on the claim that he took the most direct route to his vehicle to get away from the complainant is misconceived. CFB had the obligation under the FVRO not to approach or remain within 50 m of the complainant.
The proposition that CFB did not approach or remain within 50 m of the complainant because he was taking the most direct route to his vehicle is no answer to the fact that CFB breached the terms of the FVRO.
The learned Magistrate did not err in finding that CFB approached or remained in respect to the complainant. Her Honour clearly found that CFB, whilst he may have been wishing to get to his vehicle after he exited the shopping centre, did walk towards the complainant's vehicle and thereby approached the complainant.
Accordingly, leave to appeal is not granted on grounds 1, 3 and 4.

SJA 1026 of 2024

Ground 1

I now turn to appeal SJA 1026 of 2024.
By ground 1, the prosecution contends that the sentence imposed, being a fine of $200, suspended for 6 months, was manifestly inadequate. In order to determine whether a sentence for an individual offence is manifestly inadequate, the offence should be considered in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.[50]

Maximum penalty

[50] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

The maximum penalty for breach of a FVRO under s 61(1) of the RO Act is a fine of $10,000, or imprisonment for 2 years, or both.
On 7 April 2020, the maximum penalty for the offence was increased from the previous maximum of $6,000, or imprisonment for 18 months, or both. The maximum penalty was increased as part of a number of changes to the RO Act with a view to improving access to restraining orders, ensuring that victims are not exposed to risk and holding perpetrators to account.[51] When Parliament increases the maximum penalty for an offence, it is, in effect, requiring courts to regard offences of that kind more seriously in the future.[52]

Standards of sentencing customarily imposed

[51] Second Reading Speech, Family Violence Legislation Reform (Covid‑19 Response) Bill 2020, 2.

[52] The State of Western Australia v BLM [2009] WASCA 88 [35] (Wheeler & Pullin JJA).

The range of factual circumstances in which a breach of a violence restraining order may occur is wide and the range of sentences imposed is equally wide and so there is no tariff for breach of a restraining order.[53]

Seriousness of the offence

[53] Van Arkel v Tordoff [2020] WASC 153 [36].

The prosecution accepts that the breach falls to the lower end of the scale of seriousness for offences of this kind.[54] However, the prosecution submits that CFB made a deliberate choice to continue behind the complainant and thereby chose to remain in close physical proximity to the complainant. By so doing, CFB caused the complainant alarm and concern.
[54] Prosecution's Outline of Submissions on Appeal dated 27 September 2024 [49].
Both personal and general deterrence are significant sentencing factors.[55] Deliberate breaches of court orders or police orders made under the RO Act undermine the efficacy of the orders. Further, it is important that persons who breach or contemplate breaching FVROs understand that there will be consequences for the offending. Otherwise, there will be less incentive for persons subject to the orders to comply.
[55] Rogers v Hitchcock [2015] WASC 120 [46].
It must be understood that breaches at the lower end are likely to cause the Protected Person distress and be fearful that there is a likelihood of further breaches in the future.

Personal circumstances

CFB, who was 38 years of age at the time of the offence, was a WA police officer for 17 years and had attained the rank of sergeant. CFB was otherwise a man of excellent character. In oral submissions, CFB's counsel stated that he suffered from post‑traumatic stress disorder and was currently unemployed and impecunious. The prosecution noted that no evidence was provided of CFB's financial circumstances. The learned Magistrate accepted the submission and sentenced on the basis that CFB was of excellent character and was impecunious.
The prosecution submits that even if an offence of this type is at the lower end of the scale of seriousness, where a FVRO has been made and thereby a court has been satisfied that family violence has been committed or that there are reasonable grounds to apprehend that it would be committed, then any breach of the order is likely to cause genuine fear. Further, the need for personal and general deterrence outweighs objective considerations such as the offender's personal circumstances.
After considering this matter, I am satisfied that the sentence imposed was manifestly inadequate. A suspended fine of $200 for the breach of the FVRO is not merely lenient but manifestly inadequate.

Residual discretion

CFB submits that the appellant has not negated the exercise of the residual discretion not to interfere with the sentence imposed by the learned Magistrate.
This court has a residual discretion not to interfere with a primary judge's exercise of the sentencing discretion in the context of a State appeal notwithstanding that appealable error has been established: see s 31(4)(a) of the Criminal Appeals Act2004 (WA). The High Court outlined the relevant principles in CMB v Attorney General for New South Wales.[56]
[56] CMB v Attorney General for New South Wales [2015] HCA 9 [54] - [65] (per Keifel J, Bell J, Keane J).
A respondent to a prosecution appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to satisfy this court that the residual discretion should not be exercised. The difference in the approach between offender appeals against sentence and prosecution appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. Prosecution appeals are concerned with establishing principles for the guidance of sentencing judges.[57]
[57] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ).
In the present case, counsel for CFB referred to the statement of the learned Magistrate that 'I would be, in sentencing, minded to suspend a fine and look favourably upon a spent conviction application if one is made'. CFB submits that the prosecutor did not state anything to the learned Magistrate against her Honour imposing that sentence.[58]
[58] ts 31 (06/11/2024).
The statement of the learned Magistrate that CFB relies upon was made by her Honour at the conclusion of delivering her reasons for decision in convicting him. Her Honour immediately stated that she wished 'to canvas some matters in sentencing'.[59] Her Honour made the statement relied upon by CFB. Counsel for CFB then delivered a plea in mitigation submitting that a suspended fine would be the appropriate disposition and that a spent order was appropriate.[60]
[59] ts 29 (28/03/2024).
[60] ts 29 (28/03/2024).
The prosecutor stated the only submission that the prosecution wished to make on sentence was that whilst the appropriate disposition was a fine 'we don't wish to be heard on whether your Honour is minded to suspend the fine'.[61] The prosecutor submitted that general deterrence was a relevant sentencing factor and that the prosecution did not wish to make a submission as to whether personal deterrence was a relevant factor.[62]
[61] ts 30 (28/03/2024).
[62] ts 30 (28/03/2024).
In respect to whether a spent conviction should be made, the prosecutor stated that it was a matter for her Honour as to whether CFB was granted a spent conviction.[63]
[63] ts 30 (28/03/2024).
At the hearing of the appeal, counsel for the prosecution submitted that her Honour only expressed a preliminary view about suspending a fine. From the submissions made by the prosecutor, I find that the prosecution did not oppose any fine being suspended nor the granting of a spent conviction.
During the hearing of the appeal, I expressly asked counsel for the prosecution whether the prosecution's claim of manifest inadequacy was in respect to the quantum of the fine or the suspension of the fine. Counsel responded that the prosecution does not necessarily make the submission that an available sentencing disposition could not have included either partial or full suspension of any fine.[64]
[64] ts 24 (06/11/2024).
There was no suggestion by the prosecution either at first instance or on appeal that the appropriate disposition was other than a suspended fine. I agree with the prosecution and CFB that a fully suspended fine is the appropriate disposition. Therefore, the residual discretion does not arise in this case. I understand that CFB is contending that the residual discretion has application in respect to the quantum of the fine but not as to whether the fine should be suspended. If the prosecution had made submissions on appeal contrary to the submission at the sentencing hearing regarding the suspension of the fine, then the discretion may have application. However, that would also be subject to a consideration of whether, in circumstances where an appealable error has been clearly established, the public interest in maintaining appropriate sentencing standards for serious offending of the type committed weighs strongly against the exercise of the residual discretion.
Accordingly, on ground 1, I grant leave to appeal and allow the appeal. I set aside the suspended fine of $200 and in lieu thereof, I impose a $750 fine suspended for 6 months. In resentencing, I am mindful of the circumstances in which the offence occurred. The offending is towards the lower end of this type of offending. I am also mindful of CFB's capacity to pay a fine.

Ground 2

By ground 2 in SJA 1026 of 2024, the prosecution contends that the learned Magistrate erred in law in refusing to make an order that CFB pay all or part of the prosecution's costs.
Section 67 of the Criminal Procedure Act 2004 (WA) (CPA) provides:
67.Costs
(1)Subject to the Official Prosecutions (Accused's Costs) Act 1973 and this section, a successful party to a prosecution is entitled to the party's costs.
(2)If a court convicts an accused of a charge, the court may order the accused to pay all or a part of the prosecutor's costs.
(3)The amount of costs ordered under subsection (2) may be determined in accordance with the relevant determination made under the Legal Profession Uniform Law Application Act 2022 section 133 for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 and with the Legal Profession Uniform Law Application Act 2022 section 141.
(4)A court may reduce the costs that it would otherwise have awarded, or refuse to award costs, under this section to a party if -
(a)any act or omission of or caused by the party (other than an act or omission that is the subject of a charge) was unreasonable in the circumstances and contributed to the institution or continuation of the case; or
(b)any act or omission of or caused by the party during or in the conduct of the case was calculated to prolong the case unnecessarily or cause unnecessary expense.
(5)The court may adjourn an application for costs, or the determination of the amount of costs to be paid.
(6)A question adjourned under subsection (5) is to be dealt with by a magistrate and may be dealt with in chambers.
At the conclusion of the trial, the prosecution made an application for costs in the amount of $4,566.30.[65]
[65] ts 31, 33 ‑ 34 (28/03/2024).
The learned Magistrate refused the application for costs, stating as follows:[66]
Section 67(1) outlines that a successful party to a prosecution is entitled to costs, but subsection (2) gives me the discretion. I may order costs, I may order all or part of the prosecution's costs be paid. Section 4, I am interpreting in the most liberal sense. This prosecution seems to me to have been so far out of the public interest that I wouldn't have considered that it should have been brought to the court's attention.
I decline to make an order for costs against you, CFB.
[66] ts 34 (28/03/2024).
In Basham v City of Joondalup [No 2],[67] Fiannaca J considered the scope of s 67 of the CPA stating that the section is a specific provision that gives effect to the presumption in favour of the successful party. Fiannaca J stated that the discretion under s 67(2) is broad, observing that its terms do not delimit the factors that may be taken into account in determining how much of the prosecutor's costs an accused should be ordered to pay. In particular, they do not confine the exercise of discretion to order payment of only part of the prosecutor's costs to circumstances where the conditions in s 67(4)(a) or s 67(4)(b) are met.[68] Fiannaca J stated that s 67(2) confines the discretion to the determination of the amount of the costs to be paid with the costs entitlement then qualified by the discretion under s 67(2) to order payment of only part of the costs, the discretion under s 67(3) to determine the costs in accordance with the relevant determination referred to therein, and the discretion under s 67(4) to reduce the costs the court would otherwise have awarded, or refuse to award costs, in certain circumstances.
[67] Basham v City of Joondalup [No 2] [2016] WASC 120.
[68] Basham v City of Joondalup [No 2] [2016] WASC 120 [80].
The discretion in relation to costs under s 67(2) must not be exercised arbitrarily, capriciously or so as to frustrate the legislative intent.
The learned Magistrate refused to order costs to the successful party because in her opinion the prosecution was not in the public interest. There is no merit in that reasoning. The prosecution were entitled to prosecute the breach of the FVRO and entitled to all or part of the prosecutor's costs. The learned Magistrate erred in exercising her discretion under s 67(2) of the CPA by refusing costs.
In determining the quantum of costs in this case it is necessary that proportionality be considered. In Basham v City of Joondalup,[69] Fiannaca J stated the following in respect to proportionality:
[69] Basham v City of Joondalup [No 2] [2016] WASC 120 [100].
1.Proportionality is a relevant consideration in the making of a costs order, bearing in mind that the question of costs must always be considered in context;
2.Taking proportionality into account may result in an order under s 67(2) CPA requiring payment of only part of the prosecutor's costs;
3.Factors that will inform whether costs are proportionate include:
(a)the burden on the offender of the combination of any financial penalty and costs, relative to the nature of the offence and the criminality of the offending conduct, which is an aspect of taking into account the offender's personal circumstances; and
(b)the objective in litigation that costs should bear a reasonable relationship to the nature of the proceedings and the issues to be resolved, which will require consideration of factors directly connected with the litigation;
4.Consideration of costs orders in similar cases may provide guidance as to whether the costs to be ordered are proportionate, but the assessment of proportionality may be affected by factors specific to the case which reduce the utility of such comparisons.
CFB submits that I should decline to allow the appeal in exercise of the residual discretion. The contention of CFB is that counsel for the prosecution in discourse with the learned Magistrate referred to s 67(2) observing that the court has a discretion as to whether to make an order that the offender pay all or part of the prosecutor's costs. Her Honour then referred to s 67(4) observing that she will interpret the section in the 'the most liberal sense' and take into account her finding that the prosecution was 'so far out of the public interest.'
I do not consider that the prosecutor misled or incorrectly cited the relevant legislation during discourse at the sentencing hearing. The residual discretion does not arise.
I grant leave to appeal against the refusal to order costs and allow this ground of appeal. I will hear the parties as to the quantum of costs.

Conclusion

Accordingly, in respect to SJA 1030 of 2024, I grant an extension of time in which to appeal but leave to appeal is not granted on grounds 1, 2, 3 and 4 and thereby the appeal is taken as dismissed.
In respect to SJA 1026 of 2024, I grant leave to appeal in respect to grounds 1 and 2 and allow the appeal on grounds 1 and 2.
The fine of $200, suspended for 6 months, imposed by the learned Magistrate is set aside and in lieu thereof a fine of $750, suspended for 6 months, is imposed. The respondent will pay the costs of the prosecution. I will hear the parties in respect to the quantum of the costs to be ordered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CEM
Associate to the Hon Justice McGrath
7 APRIL 2025