Waite v Director of Public Prosecutions - [2025] WASC 244

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WAITE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 244
CORAM:   HOWARD J
HEARD:   17 JUNE 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   SJA 1022 of 2025
BETWEEN:   SKY NATHAN WAITE
Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   PE 29752/2024; PE 29753/2024; PE 43035/2024;
PE 43036/2024; PE 43037/2024; PE 43038/2024

Catchwords:

Criminal law - Single judge appeal - Appeal against sentence - Whether Magistrate erred in law - Whether the total effective sentence infringed the first limb of the totality principle - Appeal dismissed

Legislation:

Bail Act 1982 (WA) s 51
Criminal Code s 70A, s 313, s 444

Restraining Orders Act 1997 (WA) s 61
Sentencing Act 1995 (WA) s 9AA

Result:

Leave refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr H W Glenister
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	William Gerard Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Kelly v State of Western Australia [2024] WASCA 116
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Peterson [1984] WAR 329
R v Rowe (1991) 52A Crim R 196
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
State of Western Australia v Chungarai [2021] WASCA 147

HOWARD J:

This is an appeal against sentence.
On 24 March 2025, the appellant was convicted of six charges in the Magistrates Court at Perth on his pleas of guilty. The victim of the appellant's offending is his ex‑partner with whom he has a young son who was two or three years old at the time of the offending.
The offences occurred on two dates, namely 26 May 2024 and 1 August 2024.
The two offences committed on 26 May 2024 were:
1.trespass, contrary to s 70A(2) of the Criminal Code (PE 29752/2024); and
2.criminal damage in circumstances of aggravation, contrary to s 444(1)(b) of the Criminal Code (PE 29753/2024).
On 27 May 2024, the appellant entered into a bail undertaking.
On 24 July 2024, the appellant was made subject to a family violence restraining order.
The four offences committed on 1 August 2024 were:
1.trespass, contrary to s 70A(2) of the Criminal Code (PE 43035/2024);
2.aggravated common assault, contrary to s 313(1)(a) of the Criminal Code (PE 43036/2024);
3.breach of protective bail conditions, contrary to s 51(2)(a) of the Bail Act 1982 (WA) (PE 43037/2024); and
4.breach of a family violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (PE 43038/2024).
On 25 March 2025, the appellant was sentenced in the Magistrates Court to a total effective sentence of 27 months' imprisonment and was declared to be a serial family violence offender.
The sentence was comprised of the following:
1.PE 43037/2024 (Breach of protective bail conditions on 1 August 2024) ‑ 9 months' imprisonment (head sentence). The Magistrate correctly identified the appropriate maximum penalty as imprisonment for 3 years or a fine of $10,000, or both;
2. PE 43038/2024 (Breach of a family violence restraining order on 1 August 2024) - 9 months' imprisonment (concurrent). The Magistrate correctly identified the appropriate maximum penalty as imprisonment for 2 years or a fine of $10,000, or both;
3. PE 43036/2024 (Common assault in circumstances of aggravation on 1 August 2024) - 6 months' imprisonment (concurrent). The Magistrate correctly identified the appropriate maximum penalty as imprisonment for 3 years or a fine of $36,000, or both;
4. PE 43035/2024 (Trespass on 1 August 2024) - 6 months' imprisonment (cumulative). The Magistrate correctly identified the appropriate maximum penalty as imprisonment for 12 months or a fine of $12,000, or both;
5. PE 29753/2024 (Criminal damage or destruction of property on 26 May 2024) - 6 months' imprisonment (cumulative). The Magistrate correctly identified the maximum penalty as imprisonment for 3 years or a fine of $36,000, or both;
6. PE 29752/2024 (Trespass on 26 May 2024) - 6 months' imprisonment (cumulative). The Magistrate correctly identified the appropriate maximum penalty as imprisonment for 12 months or a fine of $12,000, or both.
The Magistrate allowed a 20% discount to the appellant under s 9AA of the Sentencing Act 1995 (WA). The Magistrate found the pleas of guilty were not at the first opportunity and were made in the face of overwhelming prosecution cases.[1] There is no challenge to that discount.[2]
[1] ts, Western Australia Police v Waite, Magistrates Court of Western Australia at Perth, 25 March 2025, 4.
[2] Appellant's outline of submissions filed 28 May 2025 (Appellant's submissions) [13] and [29].
The Magistrate made the appellant eligible for parole and backdated the sentence to 4 August 2024 to take into account time spent in custody.
Consequently, the appellant is eligible for parole on 18 September 2025.
By an appeal notice filed 18 April 2025, the appellant sought to appeal against the sentence imposed.
The appellant's submissions[3] make it plain that:
1.the sole ground of appeal is that the Magistrate erred in law by imposing a total effective sentence that infringed the first limb of the totality principle; and
2.there is no challenge made to any of the individual sentences.
[3] Appellant's submissions.
In overview, the appellant submitted that the total effective sentence was 'disproportionate to the overall criminality of [his] offending'.[4]
[4] Appellant's submissions [36].

Relevant provisions for this Appeal

The appellant sought to appeal pursuant to s 7(1) and ss 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's sentence is a 'decision' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on his appeal ground.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[5]
[5] Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).

Totality

This Ground asserts an implied error. An appellate court (including on a single judge appeal), is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge or magistrate: Roffey v The State of Western Australia [2007] WASCA 246 (Roffey)[23] (McLure JA for the Court).
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard as to the circumstances of the case, including those referable to the offender personally: Roffey [24].
Where the principle of totality is applicable, it is of little importance how the ultimate aggregate (ie the total effective sentence) is made up: Roffey [26].
While the appellant submitted that the Magistrate did not make express reference to the first limb of the totality principle in her sentencing remarks, he accepted that the Magistrate had taken the first limb into account by ordering some of the sentences to be served concurrently.
It is not to the point in establishing error that the Magistrate might have structured the sentence differently - say, for example, by reducing some or all of the sentences imposed to take into account totality considerations. As said, the structuring of the total effective sentence is not presently significant.

Offences on 26 May 2024

There is no material difference between the parties as to the material facts on which the Magistrate sentenced the appellant: with the exception of one allegation, they were as per the statement of material facts read by the prosecution.[6]
[6] ts, 25 March 2025, 3.
At about 7.00 pm on 26 May 2024, the appellant attended the victim's house. He was aggressive and began banging on the front gate while yelling and abusing the victim. The victim and her two-year-old son were inside the house.
The appellant jumped over the fence of the property into the rear yard (PE 29752/2024 - Trespass) and continued to abuse and threaten the victim. The Magistrate described the appellant as terrorising the victim.[7]
[7] ts, 25 March 2025, 3.
The victim locked herself and their son in a room as she was fearful of the appellant. The appellant was aggressive and destructive. He threw and damaged several items in the garden and smashed a small pane of glass in a window at the rear of the house valued at $20 (PE 29753/2024 - Criminal damage).
The appellant attempted to enter the house but was unable to do so and instead used a hose to spray water inside the house through a gap in the sliding door. The Magistrate could not think of any explanation for that behaviour other than sheer vindictiveness, and as part of his conduct which terrified the victim and their small son.[8]
[8] ts, 25 March 2025, 3.

Offences on 1 August 2024

I have already noted above the bail undertaking the appellant had entered into (on 27 May 2024) and the family violence restraining order which had been imposed (on 24 July 2024): both after the events of 26 May 2024.
At about 10:30 am on 1 August 2024, the appellant again attended the victim's house. The appellant spoke with the victim and their son through the front door and notwithstanding the victim repeatedly telling the appellant not to enter, he forced his way into the victim's house (PE 43035/2024 - Trespass).
As the appellant was exiting the victim's house, the victim attempted to grab something off him. He pushed her and, in the process, scratched her hand (PE 43036/2024 - Aggravated common assault).
At the time, the appellant was subject to a protective bail condition that required he not behave in an aggressive manner towards the victim (PE 43037/2024 - Breach protective bail) and was subject to a family violence restraining order that required he not behave in an intimidatory, offensive or emotionally abusive manner towards the victim (PE 43038/2024).
The Magistrate described the appellant as being a bully and acting in sheer defiance of the court orders prohibiting him from acting towards the victim in an intimidating way.[9] The Magistrate said that the appellant had, again, acted in the presence of their child and she could hear both the victim's and their child's distress clearly on the CCTV footage.[10]
[9] ts, 25 March 2025, 3.
[10] ts, 25 March 2025, 3.

The Magistrate's reasons

The Magistrate considered that the two trespasses were high on the scale of seriousness.[11]
[11] ts, 25 March 2025, 3 - 4.
The Magistrate held that the breach of bail and the family violence restraining order were also high on the scale of seriousness.[12]
[12] ts, 25 March 2025, 3 - 4.
The Magistrate took into account the only two mitigating factors: namely the appellant's plea of guilty;[13] and his extremely difficult upbringing.[14]
[13] ts, 25 March 2025, 4.
[14] ts, 25 March 2025, 5.
As said, there is no challenge made to the 20% discount the Magistrate allowed to the appellant for his pleas of guilty.
Nor is there any challenge to the Magistrate's approach to bringing into account the appellant's difficult upbringing.
The Magistrate considered: the appellant's antecedents; a psychological report;[15] a psychiatric report;[16] and a pre‑sentence report.[17]
[15] Made by Dr Riordan dated 23 February 2025.
[16] Made by Dr Calvin dated 25 November 2024.
[17] Made by Ms Sfetcopoulos of Adult Community Corrections dated 24 February 2025.
Her Honour remarked upon the appellant's:
1.persistent offending in a domestic setting;[18]
2.chronic dependency on alcohol, cannabis and methamphetamine;[19]
3.unlikeliness to change away from intimate partner violence until he can abstain from alcohol and other drug use and comply with psychopharmacological treatment regime;[20] and
4.well above average risk for further perpetrating acts of intimate partner violence.[21]
[18] ts, 25 March 2025, 4.
[19] ts, 25 March 2025, 4.
[20] ts, 25 March 2025, 4 - 5.
[21] ts, 25 March 2025, 5.
The Magistrate found that the appellant was in a:
… class of offender where the protection of the victim and community can only be guaranteed by your removal from society for a time.[22]
[22] ts, 25 March 2025, 6.
While the appellant does not complain about any of the individual sentences, he contends that each of them was a significant sentence and that none of them was expressly reduced to take into account the first limb of the totality principle.
However, correctly, with respect, the appellant accepts that the first limb of the totality principle can be met by adjusting sentences as to whether they are to be accumulated or served concurrently: which is what the Magistrate did here.
Effectively, both parties submitted that whether or not the total effective sentence imposed bore a proper relationship to the overall criminality was an evaluative exercise for this Court.
Perhaps the only point of difference between the appellant and respondent in this case is that the appellant submitted that what was common criminality in the offending on 26 May 2024 and then the offending on 1 October 2024 was the appellant's terrorising of the victim. Effectively, it was submitted that the total effective sentence was too long and in error because it reflected separate criminality in all of the charges, rather than a set of criminal behaviour on 26 May 2024 and a set of criminal behaviour on 1 October 2024.
In this respect, the appellant submitted that the overall sentence should not punish more than once those aspects of the criminality that are common to two or more offences: Pearce v R [1998] HCA 57; (1998) 194 CLR 610 [40] (McHugh, Hayne and Callinan JJ).
The respondent, to the contrary, submitted that there were common aggravating circumstances of each of the offending - namely the family relationship and the terrorising of the victim and their son - but there was different criminality in the charges such as to negative there being an error in the accumulation of the sentences.
I do not think that approaching the Magistrate's sentencing by reference to these different considerations assists greatly, if at all, in the overall evaluative exercise which I accept must be made to determine the appeal.
In considering the overall criminality, the context of the offending is, of course, important and comprises:
1.the family relationship between the appellant and the victim;
2.the presence of their son during the offending;
3.the aggressive, abusive and threatening behaviour of the appellant;
4.the fear that was engendered and objectively would have been engendered by the appellant's conduct;
5.in the case of the offences on 1 August 2024, the complete disregard of two sets of court orders designed to protect the victim; and
6.that the repeat offending on 1 August 2024 would likely have led to increased fear and distress on the part of the victim (especially after the granting of court orders which were meant to protect her).
While the bare facts of the assault by the appellant pushing and scratching the victim's hand, or the breaking of an inexpensive pane of glass, may in another context be regarded as not particularly serious, when placed in this particular context, they are properly described, as they were by the Magistrate, as serious offending.
Further, the finding by the Magistrate that the appellant had an extremely difficult upbringing, in all of these circumstances (with the reports), points to the real prospect of future criminal behaviour on the part of the appellant and supports the finding made as to the risk of him perpetrating acts of intimate partner violence in the future: Kelly v State of Western Australia [2024] WASCA 116 [367] (Mazza and Hall JJA).
That, with the appellant's antecedents, highlighted the need for personal deterrence. Of course, general deterrence also was, and correctly should have been, important in the sentencing process here. The Court of Appeal has emphasised the importance of general deterrence and recognised the 'firming up' in recent years of sentences for offences committed in the course of domestic violence: see, for example, State of Western Australia v Chungarai [2021] WASCA 147 [57] (Buss P, Mazza and Beech JJA).
The 'firming up' of sentences may be achieved consistently with principle by, for example, giving less weight (without ignoring) mitigating factors rather than imposing a sentence which is more severe than the nature of the offence in the circumstances of its commission: see R v Peterson [1984] WAR 329, 332 (Burt CJ with whom Smith and Pidgeon JJ agreed).[23]
[23] See also R v Rowe (1991) 52A Crim R 196, 201 (Wallace J with whom Pidgeon J agreed).
The observations of the Chief Justice were made notwithstanding his 'considerable reservations' as to an assumption which may be made that:
… when an offence becomes prevalent the public demand retribution and they see increased punishment as being the sure way of reducing the number of such offences and even of persuading persons not to commit them at all. If that be the case then I would say, and say with great respect, that the expectation exceeds the capacity of the criminal law as an instrument controlling human behaviour. That is not to say that the idea of deterrence is to be abandoned … it is to say that criminal behaviour is very much the product of factors, and many factors, both personal and social, which are beyond the reach of any court and which have operated and which will continue to operate to product anti‑social behaviour. The need for punishment must be accepted, but it must be accepted with the full appreciation of its limitation.[24]
[24] R v Peterson [1984] WAR 329, 332 (Burt CJ for the Court).
In my view, fully taking into account the two mitigatory factors the Magistrate did (and the lack of challenge to the discount accorded) I do not consider that the total effective sentence infringes the first limb of the totality principle. I consider that the total effective sentence cannot be said to be disproportionate to the overall criminality in the context I have set out above.
As noted, the question is not whether this Court would have imposed the same sentence as that imposed by the Magistrate, nor whether another sentence may have been imposed on a proper exercise of a sentencing evaluation.

Disposition

In all of the circumstances, I do not consider that the Magistrate erred in the way submitted by the appellant.
For the above reasons, I do not consider that the appellant's Ground has a reasonable prospect of succeeding and I would, consequently, not grant leave and dismiss the appellant's appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
20 JUNE 2025