Wallam v Grosveld
[2015] WASC 145
•24 APRIL 2015
WALLAM -v- GROSVELD [2015] WASC 145
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 145 | |
| 24/04/2015 | |||
| Case No: | SJA:1016/2015 | 11 MARCH 2015 | |
| Coram: | KENNETH MARTIN J | 11/03/15 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on all grounds Appeal allowed on grounds 2 and 3 Sentence set aside and appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | EDWARD KEITH WALLAM PAUL MARK GROSVELD |
Catchwords: | Criminal law Appeal against sentence Breach of restraining order Prior convictions for same offence Appellant sentenced to 8 months' imprisonment to be served immediately Restraining Orders Act 1997 (WA), s 61A Whether immediate imprisonment the only appropriate sentencing option Turns on own facts |
Legislation: | Restraining Orders Act 1997 (WA), s 61, s 61A |
Case References: | AH v The State of Western Australia [2014] WASCA 228 Almonte v Beswick [2013] WASC 207 Casotti v Pickering [2013] WASC 174 Chan v The Queen (1989) 38 A Crim R 337 D'Costa v Roe [2013] WASC 99; (2013) 228 A Crim R 350 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Dragon v The State of Western Australia [2008] WASCA 252 Fogg v The State of Western Australia [2011] WASCA 11 Narkle v Hamilton [2008] WASCA 31 Ness v The State Of Western Australia [No 2] [2013] WASCA 56 Roe v D'Costa [2014] WASCA 118; (2013) 47 WAR 434 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Sunfly v The State of Western Australia [2009] WASCA 22 The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 Wilson v Robertson [2014] WASC 421 Zinga v Johnson [2012] WASC 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PAUL MARK GROSVELD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T R WATT
File No : PE 114776 of 2014
Catchwords:
Criminal law - Appeal against sentence - Breach of restraining order - Prior convictions for same offence - Appellant sentenced to 8 months' imprisonment to be served immediately - Restraining Orders Act 1997 (WA), s 61A - Whether immediate imprisonment the only appropriate sentencing option - Turns on own facts
Legislation:
Restraining Orders Act 1997 (WA), s 61, s 61A
Result:
Leave to appeal granted on all grounds
Appeal allowed on grounds 2 and 3
Sentence set aside and appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr D D Brunello
Respondent : Mr B D Nelson
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AH v The State of Western Australia [2014] WASCA 228
Almonte v Beswick [2013] WASC 207
Casotti v Pickering [2013] WASC 174
Chan v The Queen (1989) 38 A Crim R 337
D'Costa v Roe [2013] WASC 99; (2013) 228 A Crim R 350
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
Fogg v The State of Western Australia [2011] WASCA 11
Narkle v Hamilton [2008] WASCA 31
Ness v The State Of Western Australia [No 2] [2013] WASCA 56
Roe v D'Costa [2014] WASCA 118; (2013) 47 WAR 434
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sunfly v The State of Western Australia [2009] WASCA 22
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
Wilson v Robertson [2014] WASC 421
Zinga v Johnson [2012] WASC 216
KENNETH MARTIN J:
(This is an edited version of my reasons for judgment delivered ex tempore on 11 March 2015.)
Introduction
1 This is an application for leave to appeal against sentence by Mr Wallam in respect of 8 months' immediate imprisonment he received for breaching, on 28 November 2014, a violence restraining order (VRO) that bound him at the time.
2 The appeal has been expedited for hearing, in circumstances where Mr Wallam appeared before her Honour, Magistrate Watt, for sentencing in the Magistrates Court at Albany on Tuesday, 10 February 2015, having previously entered a guilty plea to a total of five offences, including to, relevantly for this appeal, the VRO breach of 28 November 2014.
3 For the VRO breach offence, the learned magistrate imposed a sentence of 8 months' immediate imprisonment, which was backdated to commence on 3 December 2014. Mr Wallam has therefore spent more than 3 months in custody in relation to this charge, at the time of the hearing of this appeal.
4 The four other offences dealt with on 10 February 2015 were stealing charges, three of which related to Mr Wallam's unauthorised withdrawals of sums of money from an ATM at Pingelly - after his finding someone else's debit card which had an accompanying note that disclosed the PIN number of the owner of the card. In total, these charges involved the unauthorised withdrawal on 28 November 2014 of $900 in aggregate from that person's account. A fourth stealing offence dealt with involved the stealing by Mr Wallam of a bottle of Coke from the Pingelly Roadhouse and Motel on 5 September 2014, valued at $4.50.
5 Events relating to the three ATM-related offences of 28 November 2014 would seem to have led police to 39 Eliot Street in Pingelly that same day, where they found Mr Wallam present.
6 At that time (ie, on 28 November 2014) Mr Wallam was bound by a VRO of two years' duration. The VRO had been served on Mr Wallam on 15 May 2014. It applied in respect of a named protected person, who resided at 39 Eliot Street, Pingelly. That female person had actually lived in a family relationship with Mr Wallam across 18 years. The terms of the VRO prevented Mr Wallam from approaching the protected person and from being on or within a nominated linear distance of the premises at 39 Eliot Street.
7 On 28 November 2014, Mr Wallam was arrested at those premises and conveyed to the Pingelly Police Station. There he participated in a video record of interview, where he made full admissions as to arriving at the 39 Eliot Street address because, as he explained it, the protected person and he were 'back in a relationship'.
8 By reason of his presence at the 39 Eliot Street premises which were the subject of the VRO, Mr Wallam was charged with the offence of breaching a VRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA).
9 Unfortunately for him, that was not Mr Wallam's first breach against that legislation, as I will explain.
Proceedings in the Magistrates Court
10 As I mentioned, on 22 December 2014, Mr Wallam pleaded guilty to four stealing offences, as well as to the additional charge that on 28 November 2014, having been personally served with a VRO, he breached that order by attending 39 Elliot Street, Pingelly, the residence of the protected person. Bail was refused on the VRO breach charge and a pre-sentence report was ordered.
11 The VRO breach of 28 November 2014 was treated by the learned magistrate as the most serious of the five charges dealt with during Mr Wallam's sentencing hearing on 10 February 2015. The four stealing charges appear to have been dealt with on a basis - as I read the learned magistrate's reasons - of allocating some time on remand that Mr Wallam had by then spent in custody, in the period from 29 November 2014 through 2 December 2014, as effectively being his penalty for the four stealing offences. In relation to this, there was a reference made by her Honour to s 46 of the Sentencing Act 1995 (WA) in the transcript of proceedings (ts 17), as well as in the sentencing notes on the prosecution notice. Section 46 allows a court to impose no sentence, if the circumstances of the offence are trivial or technical and having regard to matters of the kind set out in s 46(b)(i) and (ii).
12 In any event, the four stealing offences were not at all the subject of this appeal against sentence. Nevertheless, I should not be taken by these observations to suggest that the ATM-related offences were trivial. In my view, they were deceitful and serious. But I am not called upon to make any assessment of them from a penalty perspective on this appeal.
13 Otherwise, and in respect of the relevant breach of the VRO, her Honour imposed a term of 8 months' immediate imprisonment, which she said was backdated to commence from 3 December 2014. That sentence is the subject of the present application for leave to appeal.
Mr Wallam's prior multiple breaches of restraining orders
14 At his sentencing, it was accepted Mr Wallam had previously breached restraining orders binding him, in respect of the same protected person, on at least two prior occasions, and that this offending had happened within a 2-year period, before the relevant VRO breach offence of 28 November 2014.
15 Mr Wallam was therefore, at 10 February 2015, exposed to punishment under the provisions of s 61A of the Restraining Orders Act for the purposes of his sentencing for the VRO breach offence of 28 November 2014.
16 Section 61A was introduced under amendments to the Restraining Orders Act which became operative from 5 May 2012. Section 61A provides, relevantly:
61A. Penalty for repeated breach of restraining order
…
(2) This section applies if a person -
(a) is convicted of an offence under section 61(1) or (2a) (the relevant offence); and
(b) has committed, and been convicted of, at least 2 offences under section 61(1) or (2a) within the period of 2 years before the person's conviction of the relevant offence.
(3) This section applies despite the Sentencing Act 1995 and the Young Offenders Act 1994.
…
(5) Except as provided in subsection (6), if the person is not a child a penalty must be imposed on the person for the relevant offence that is or includes imprisonment.
(6) A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if -
(a) imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of a person protected or the community generally.
18 Earlier in the Restraining Orders Act, s 61(1) provides that a person bound by a VRO, who breaches that order, commits an offence. Further, and also relevantly to the working of s 61A(2)(b), s 61(2a) similarly provides that a person commits an offence if they are bound by a 'police order' and breach such an order. As regards 'police orders', see in particular pt 2 div 3A of the Restraining Orders Act.
19 It appears to have been accepted at Mr Wallam's sentencing for the 28 November 2014 VRO breach offence, that s 61A(2) and s 61A(5), read together, deliver a mandatory requirement towards punishment by imprisonment for any restraining order 'third-striker' under the Act, unless - by way of the expressed exception to the application of s 61A(5) - conjoint criteria as expressed under s 61A(6)(a) and s 61A(6)(b) were both met.
20 Counsel for Mr Wallam at his sentencing hearing submitted to the learned magistrate that what he argued were, in effect, relatively benign circumstances underlying Mr Wallam's prior restraining order breaches - were relevant as regards a submitted engagement of s 61A(6)(a) in Mr Wallam's favour. The material facts of Mr Wallam's previous VRO offences committed on 28 September 2014 and 1 October 2014 had been read out to the court (ts 10 - 11).
21 It appears that, at Mr Wallam's sentencing on 10 February 2015, it was accepted that the two convictions for a s 61(1) or s 61(2a) offence counted, in effect, as the first and second 'strikes' by Mr Wallam, for the purposes of engaging s 61A(2)(b), were his VRO breach offences of 28 September 2014 and 1 October 2014. His third offence, or 'strike', was therefore the relevant VRO breach of 28 November 2014.
22 During oral submissions upon the appeal, it was accepted that, while VRO breaches committed on 28 September 2014 and 1 October 2014 were both relevant to his sentencing on 10 February 2015 and to a consideration of Mr Wallam's appeal, only one of the breach offences of 28 September 2014 or of 1 October 2014 could 'count' as a relevant 'conviction', for a s 61(1) or s 61(2a) offence, for the purposes of engaging the criteria in s 61A(2)(b).
23 That qualification had arisen because the date on which Mr Wallam's conviction for his 1 October 2014 VRO breach offence was recorded - 2 October 2014 - actually preceded in time the date upon which a conviction for the 28 September 2014 VRO breach offence had been recorded, which was not until 14 October 2014. For those breaches of the VRO to count as distinct 'strikes', a conviction for the 28 September 2014 VRO breach offence needed to be obtained before Mr Wallam committed his 1 October 2014 VRO breach offence: see the discussion concerning an application of what has been referred to as (Sir Edward) Coke's principle of statutory interpretation with reference to s 61A(2) in Roe v D'Costa [2014] WASCA 118; (2013) 47 WAR 434 [1] (McLure P), [2] (Buss JA), [26], [34] - [42] (Mazza JA).
24 Nonetheless, it was accepted by counsel for Mr Wallam at his appeal that the 28 November 2014 VRO breach conviction was, in effect, still a 'third strike', for the purposes of engaging s 61A(2). That followed because, on 19 March 2014, Mr Wallam had breached the 'police order' affecting him at that time and he had been convicted for that offence on 3 June 2014.
25 As seen earlier, s 61A(2)(b) provides that a relevant conviction for the purposes of engaging s 61A(2) can be breaches of a VRO, or a breach of a police order.
26 Mr Wallam's 19 March 2014 police order breach conviction therefore constituted a 'first strike'. Next, one or the other of Mr Wallam's VRO breach offences of 28 September 2014 or 1 October 2014, was his 'second strike'. Then his offence by again breaching the VRO on 28 November 2014 would, upon his conviction, constitute Mr Wallam's 'third strike' - for purposes of engaging the work of s 61A(2) and s 61A(5).
27 During oral submissions at the appeal, it was related by counsel that Mr Wallam had been punished by respective fines of $1,000 for his 19 March 2014 breach of the police order, $250 for the 28 September 2014 VRO breach offence, and then another fine of $300 for the 1 October 2014 VRO breach offence.
28 As mentioned, the facts of the two earlier VRO breaches in 2014 were read out by the prosecutor at Mr Wallam's sentencing, on 10 February 2015. The transcript of the proceedings shows (ts 10 - 11):
At 4.35 pm on Sunday 28 September, the accused was present at 39 Eliot Street, Pingelly. The attending police were at the address for another matter, and observed the accused sitting in the front lounge room, consuming alcohol with other persons. The protected person was located hiding in a bedroom adjacent to the lounge room behind the door. The appellant was arrested, cautioned and the current charge was (indistinct). The second breach, your Honour, was at 9.20 pm on Wednesday 1 October.
The accused was present at 39 Eliot Street, Pingelly. Attending police were at the neighbouring address in relation to another matter regards [sic] to the accused. Observed the accused sitting in the front bedroom after he called out to the police. Police attended the address at 39 Eliot Street, Pingelly, and spoke to the accused inside the house. He stated, 'It's all been sorted out.' The protected person was not at the address at the time of the offence. The accused was arrested and cautioned.
29 The prosecutor had accepted before her Honour that none of the three VRO breach offences (ie, the VRO breaches of 28 September, 1 October or 28 November 2014) had involved any level of physical violence by Mr Wallam, as against the protected person (ts 12).
30 However, the prosecutor had submitted that by committing, in effect, three VRO breaches over a span of a few weeks (ie, between late September to late November 2014) Mr Wallam, coupled with his previous criminal record, had manifested an obvious disregard for court orders made against him and that this warranted his imprisonment.
31 Mr Wallam's criminal record was said to include his breach of a police order in 2014 (presumably the 19 March 2014 breach); another VRO breach in 2007; four breaches of bail in 2006, 2010, 2011 and 2014; and his breach of an intensive supervision order in 2011 (ts 11). There was also a common assault conviction in 2010 or 2011, with that assault said to have involved an altercation with another adult male and not to have involved any domestic context (ts 8).
Grounds of appeal
32 There are three grounds of appeal challenging Mr Wallam's sentence of 8 months' immediate imprisonment, backdated to commence from 3 December 2014, in respect of the VRO breach offence of 28 November 2014.
33 Mr Wallam's appeal has come on for hearing in expedited circumstances. He has been serving out his term of imprisonment in custody at Wooroloo Prison Farm. As of today, he will have served, by my calculation, 99 days of his 8-month term.
34 Mr Wallam's proposed grounds of appeal are set out below, as they appear on appeal notice, filed 26 February 2015:
1. The Magistrate erred in law and in fact in sentencing the appellant to imprisonment for the offence of breach a [sic] violence restraining order pursuant to s 61A of the Restraining Orders Act 1997 (WA).
Particulars
- (a) The Magistrate erred in concluding that imprisonment was not 'clearly unjust' under s 61A(6)(a), '…given the circumstances of the offence and the person'.
or, in the alternative
2. It was not reasonably open for the Magistrate to be positively satisfied that a suspended imprisonment order was not an appropriate penalty.
or, in the alternative
3. The sentence of 8 months imprisonment was manifestly excessive, in all the circumstances.
Disposition of the appeal
35 As mentioned, these reasons are being given immediately, as Mr Wallam is in custody and, given the position that I have reached, it is vital that I resolve this appeal urgently, rather than reserve.
36 I am, of course, first required to be satisfied that Mr Wallam's grounds of appeal each meet a standard of being reasonably arguable, for the purposes of granting leave, in order for them to be advanced. That threshold is clear from Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. I do not wish to draw out unduly the situation today for Mr Wallam. He is participating today by a video link from Wooroloo Prison Farm. It is obviously important that I render a decision on his appeal sooner, rather than later.
37 Therefore, in brief, I have concluded that I will grant leave to appeal in respect of all three grounds and then allow his appeal against sentence upon grounds two and three, as I explain in the remarks that follow concerning each ground. I have also concluded that I will set aside the sentence imposed by the magistrate and resentence Mr Wallam.
Ground 1
38 The first ground of appeal contends, in essence, that the learned magistrate made an error of law or fact, in relation to imposing any term of imprisonment upon Mr Wallam, notwithstanding the terms of the regime established under s 61A(2) and s 61A(5) of the Restraining Orders Act for dealing with offenders who have committed multiple restraining order breaches.
39 In particular, it was submitted that a vitiating error arose by reason of her Honour's articulated finding that it was not, in the terms of s 61A(6) - to which s 61A(5) is expressly made subject - 'clearly unjust' for a term of imprisonment to be imposed. To paraphrase, it was submitted that error arose because the learned magistrate should have been satisfied that the requirements of s 61A(6), specifically s 61A(6)(a), had been met. [No real issue appears to have been taken that s 61A(6)(b) was not otherwise met, in Mr Wallam's favour.]
40 It was evident from Mr Wallam's oral and written submissions, that the specific error of law contended for by him under this ground was that the learned magistrate erred, by the 'excessive emphasis' she apparently placed upon the circumstance of Mr Wallam's having committed multiple prior breaches of restraining orders binding him. Correlative to that submission was the asserted insufficient weight placed on the (benign, it was argued) circumstances of the prior restraining order breach offences and the VRO breach offence of 28 November 2014, given it was accepted by the prosecutor that there had never been any physical violence against the protected person associated with any of the VRO breach offences.
41 It was further submitted, bearing in mind the antecedents of Mr Wallam and his history, that the learned magistrate correlatively in this process, gave insufficient weight, or inadequate proportionality (in terms of an appropriate punishment needing to fit the offence), to Mr Wallam's particular circumstances, so that, overall, there had been error, in placing too much emphasis upon the repeated restraining order breaches, as against the weightier countervailing factors in Mr Wallam's favour, rendering it overall 'clearly unjust' for him to be sentenced to a term of imprisonment, for the purposes of s 61A(6)(a).
42 I would grant leave but dismiss this ground of appeal. In my respectful assessment of the learned magistrate's reasons, her Honour, given the overall circumstances that she was confronted with, did not err in terms of her ultimate imposition of a term of imprisonment. These relevant circumstances included, in total, four breaches of orders made under the Restraining Orders Act, which had bound Mr Wallam, between March and November 2014.
43 A police order, under s 30A of the Restraining Orders Act, was served on Mr Wallam on 18 March 2014. It was then breached by Mr Wallam on 19 March 2014, resulting in a fine of $1,000. As earlier discussed, that conviction was, effectively, Mr Wallam's 'first strike', for the purpose of engaging an application of s 61A(2), read in conjunction with s 61A(5) and s 61A(6).
44 That police order expired. But it was subsequently followed by the VRO, served on Mr Wallam on 15 May 2014.
45 As to VRO breaches between late September and late November 2014, there is, I assess, a certain degree of factual 'murkiness' about the underlying facts surrounding all of them, at least in terms of their description in the transcript of the proceedings at the sentencing, on 10 February 2015.
46 No argument was put to the learned magistrate that, on 28 November 2014 at 8.30 pm, Mr Wallam had been present other than voluntarily at 39 Eliot Street, Pingelly, or that his presence there was not then directly in breach of the VRO then in place.
47 The learned magistrate made reference (at ts 12) to a pre-sentence report stating that the protected person had approached Mr Wallam about returning some clothes. Her Honour noted counsel for Mr Wallam had indicated that, at that time, Mr Wallam and the protected person were returning to their (formerly long-term) relationship.
48 Concerning the 28 September 2014 VRO breach, the statement of facts read out to the court on 10 February 2015 had said that the police had located Mr Wallam at the 39 Eliot Street, Pingelly premises, in circumstances where the protected person had been hiding in a bedroom behind a door. But the learned magistrate looks to have conflated that factual position when it came to sentencing. At ts 14, she said it was Mr Wallam who had been hiding behind the bedroom door. That conflation error, I am now very concerned, might have wrongly borne upon her overall assessment of the calculated gravity of that earlier VRO breach offence of Mr Wallam. That breach had been punished by a fine of $250. As discussed above, the date of Mr Wallam's conviction for the 28 September 2014 VRO breach offence was, chronologically, after both the date of his 1 October 2014 VRO breach offence and also the date of his conviction for that offence.
49 Concerning the 1 October 2014 VRO breach offence, based on the statement of facts read out to the learned magistrate, it would appear Mr Wallam was again found to be present that day at the same premises at 39 Eliot Street, Pingelly. In rather overt circumstances, it would appear his presence was detected by police, who had been attending at a relative's neighbouring address at 41 Eliot Street. Mr Wallam had then apparently called out to the police, using words to the effect: 'It's all been sorted out'. Clearly, however, everything had not been sorted out. The VRO which Mr Wallam had been served with in May 2014 was still in effect. Mr Wallam was duly charged again for breaching the VRO on that day. From the statement of facts read to the court it appears that the protected person was not at 39 Eliot Street at the time. Mr Wallam was convicted on his plea of guilty and sentenced again by another fine of $300.
50 Whatever may be said about the repetitious circumstances of what were, all up, four VRO breach of restraining order offences, it was never contended to the learned magistrate that Mr Wallam's actions on those dates did not violate the terms of the valid police order, or the VRO which then bound Mr Wallam.
51 Nor was it contended that, once a conviction for the 28 November 2014 VRO breach was entered (upon his plea of guilty) that a legislative requirement towards his punishment by imprisonment, as delivered by s 61A(5), had not been engaged. The only real controversy then raised was whether or not the particular circumstances of express exception for the purposes of engaging s 61A(6)(a) were met, on a basis that it would then be 'clearly unjust' to impose any penalty by way of imprisonment. There appeared to be no suggestion that s 61A(6)(b) did not favour Mr Wallam, if the s 61A(6)(a) 'clearly unjust' criterion could be shown to be met.
52 In my view, there was no error by the learned magistrate taking account of the multiple breaches by Mr Wallam of orders under the Restraining Orders Act, noting that fines had previously been imposed, and that three VRO breach offences had occurred in a short span of only two months (ie, 28 September to 28 November 2014).
53 Given all that history, it is difficult to conclude the learned magistrate erred by not, at the end, being satisfied it would be 'clearly unjust', in the relevant circumstances of a further VRO breach offence of 28 November 2014 and the present circumstances then applicable to Mr Wallam, to disturb the requirement towards imprisonment set under s 61A(5), which the legislature clearly sought to achieve when bringing into effect amendments to the Restraining Orders Act on 5 May 2012.
54 Hence, I cannot accede to ground 1. However, as I explain below, that conclusion does not detract from my allied view that it was not reasonably open for the learned magistrate to conclude that a term of immediate imprisonment was the only appropriate sentencing option. Section 61A(5), as is seen, only speaks by its language of 'imprisonment'. It does not, for example, use the terminology of 'immediate imprisonment'. The respondent's written submissions contend, correctly in my view, that nothing in the Restraining Orders Act suggests that a term of imprisonment that is required to be imposed by reason of an engagement of s 61A(5) cannot be suspended. Those submissions helpfully note a contrasting position with regard to s 318(4) and s 401(5) of the Criminal Code (WA), which do expressly provide that a court shall not suspend a term of imprisonment for certain nominated offences, unlike s 61A(5).
Ground 2
55 The second ground of appeal is, in essence, that it was not reasonably open to the learned magistrate to conclude that a sentence of immediate imprisonment was the only appropriate sentencing option. This ground must succeed.
56 I prefer the above formulation of the ground of appeal, rather than how the ground was stated in the appeal notice, because - at least in the limited circumstances of certain borderline cases - it can be reasonably open to impose different types of sentence, including, in some circumstances, either a term of suspended imprisonment or a term of immediate imprisonment: Fogg v TheState of Western Australia[2011] WASCA 11 [5] - [10] (McLure P), [49] (Mazza JA). In Fogg, McLure P said:
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust … the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option [10].
57 As I have indicated already, it was accepted by both parties at the appeal that reference in s 61A(5) to an imposition of a penalty 'that is or includes imprisonment' deploys language wide enough to include, if otherwise appropriate, a term of suspended imprisonment. Hence, that sentencing option still remained open to the learned magistrate, after she had concluded that s 61A(6) was not engaged.
58 A determination upon whether a sentence of or including imprisonment would be 'clearly unjust', pursuant to the terms of s 61A(6) (the subject matter of ground 1), differs somewhat from the nature of a determination regarding the appropriateness of imposing a term of suspended imprisonment, once it had been determined that s 61A(5) was engaged and that a sentence of imprisonment was appropriate. As I read her reasons, the learned magistrate properly distinguished between these different issues (ts 15).
59 Case authorities dealing with the appropriateness of imposing a term of suspended imprisonment, mentioned in the parties' respective submissions, included Dinsdale v The Queen[2000] HCA 54; (2000) 202 CLR 321 and Ness v The State Of Western Australia [No 2] [2013] WASCA 56. Concerning the exercise of a sentencing discretion in these circumstances, I note that in NessBuss JA (McLure P agreeing at [1]) said at [26] - [27]:
The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia[2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA); Fogg v TheState of Western Australia[2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v TheQueen[2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
60 As to the appropriate sentencing disposition towards Mr Wallam, as at 10 February 2015, I am concerned that the transcript displays that there was only the briefest discussion by her Honour of a possibility of imposing a suspended term of imprisonment in the transcript of proceedings. She said, in quite unrevealing terms, as regards her process of reasoning on a vital issue:
I have turned my mind as to whether the order should be suspended. And I am not satisfied on the facts before me that it should be (ts 17).
61 The respondent correctly submitted that those remarks, while brief, must be viewed in an overall context of all that the learned magistrate earlier said, from the time that she began her sentencing remarks, seen as commencing essentially at the top of page 12 of the transcript through to page 17. The respondent further submitted that the learned magistrate's reasons, fairly read, reveal her Honour did sufficiently take into account Mr Wallam's personal circumstances, particularly given the references to his pre-sentence report (a document her Honour had obviously received); Mr Wallam's early plea of guilty; and his co-operation with the police, including his frankness in interviews with the police. Notwithstanding that submission, I remain troubled on the issue of suspended imprisonment as a viable option for Mr Wallam not being properly considered.
62 In my respectful assessment, this was a sentencing task which, with his previous fines for VRO or police order breach offences of $1,000, $300 and $250 having been imposed, it was necessary to look very closely at the offending circumstances of the further VRO breach offence of 28 November 2014.
63 Here, the related circumstances of that offence were again rather threadbare. But again, they present as relatively benign, by reason of the absence of any physical violence towards the protected person, indeed what looks to be the presence of something of an invitation to Mr Wallam from the protected person, to attend the premises, to collect his clothes.
64 Little of substance was, or could be, said about the 28 November 2014 circumstances as regards the impact of the last VRO breach upon the protected person. It appears the learned magistrate was not in receipt of any victim impact statement. Such a statement might have helped to elaborate upon, whether by support or by rebuttal, the underlying circumstances of this last VRO offence. I note, however, that Mr Wallam accepted that he had a problem, contextually at this time, with alcohol (ts 10 and ts 14).
65 In addition to the ATM related material facts with respect to the police arriving at the premises on 39 Eliot Street at 8.30 pm on 28 November 2014 to find the appellant present, the circumstances of this VRO breach offence seem to have involved some level of temporary reconciliation or reunification as between two persons, who had previously been in a long-term family relationship of approximately 18 years. It also appears Mr Wallam had a close relative (a brother) who lived next door, at 41 Eliot Street in Pingelly (see ts 7).
66 As regards the 19 March 2014 police order breach, the police apparently had encountered Mr Wallam present at that 'next door' address, where Mr Wallam said his younger brother lived. However, the breadth of the police order at that time meant that his presence at the house at 41 Eliot Street fell within the range of a prohibited linear distance of the premises at 39 Eliot Street, where the protected person resided.
67 In assessing an appropriate sentence it is, of course, necessary to consider the applicable provisions of the Sentencing Act. In this instance, the sentencing principles found in pt 2 div 1 of that Act (s 6 to s 9AA) are relevant. So also s 39, which deals with sentencing options for natural persons.
68 Section 39(2) lists eight sentencing options, in a descending order of relative severity, such that the first option, under s 39(2)(a), is to impose no sentence. In contrast, the last mentioned option in the list, s 39(2)(h), is to impose a term of immediate imprisonment. Relevantly, the option to impose a term of suspended imprisonment and order the release of the offender is a sixth option, seen under s 39(2)(f).
69 Section 39(3) provides that a court must not use a sentencing option in s 39(2) unless it is satisfied, having regard to the provisions in pt 2 div 1, that it is not appropriate to use any of the options listed before that option. Hence, a sentence of immediate imprisonment is always a sentence of last resort, in the sense that there must present no other lesser sentencing disposition that is appropriate: AH v The State of Western Australia [2014] WASCA 228 [115]. In Dinsdale, Gleeson CJ and Hayne J observed, by reference to s 39(3) of the Sentencing Act, that 'a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the [Sentencing Act] [11]'. That was in the context of a discussion as to whether a term of suspended imprisonment was appropriate to the circumstances of that case.
70 Section 39(3) also directs the sentencing judicial officer to the consideration of the sentencing principles in pt 2 div 1 of the Sentencing Act. Those principles include, inter alia, a consideration of both aggravating and mitigating factors: see s 6, s 7 and s 8. Section 9AA provides that a sentence may be reduced if an offender pleads guilty. Here, the learned magistrate accepted that Mr Wallam had made an early plea. Her Honour said she had credited him with a 20% discount on what would otherwise be his sentence (ts 12).
71 In all these circumstances, several considerations strongly point towards immediate imprisonment not being the only appropriate sentencing option for Mr Wallam, at 10 February 2015. These include the relevant provisions of the Sentencing Act, particularly s 39(3); the relatively benign underlying VRO breach circumstances, as discussed, of the 28 November 2014 VRO breach offence and of the preceding breach convictions - which had triggered the engagement of s 61A(5); and Mr Wallam's personal circumstances, which included, at that time of sentencing, his then having spent more than two months (70 days, by my calculation) in custody (see Sunfly v The State of Western Australia [2009] WASCA 22 [243]).
72 I am also concerned, as I earlier said, about an apparent conflation of facts by the learned magistrate, as I identified earlier at transcript page 14, in terms of the identity of the person who was actually hiding behind the bedroom door, in the incident of 28 September 2014. Towards this incident, the learned magistrate said this 'tells me that you knew you shouldn't have been at that location'. But correctly understood, the facts as related in the statement of facts for that offence, did not support that adverse inference against Mr Wallam.
73 I also note that when the learned magistrate was assessing the pivotal criterion of 'clearly unjust' under s 61A(6)(a), she had said :
And given that there's four breaches since June - 3 June and three since 3 October, I just simply can't conclude that it's unjust. It's a blatant disregard for court orders (ts 15).
74 That comment, with respect, also presents to me to be less than fulsome or clear in terms of the required assessment of the precise underlying factual circumstances that her Honour was identifying as significant, relating to prior breaches.
75 As regards assessing the learned magistrate's reasons, appeal courts must, I fully accept, have regard to the nature of summary proceedings and the effect of provisions such as s 31 of the Magistrates Court Act 2004 (WA). That said, and appreciated, it was not enough here, in my respectful assessment, for the learned magistrate to offer only two brief and unrevealing sentences (from a reasoning exposure perspective) towards the issue of whether suspension of the term of imprisonment was appropriate or not. They do not, with respect, really expose any level of reasoning that underlies that expressed conclusion against Mr Wallam.
76 However, the real issue underlying ground 2 is not the inadequacy of reasoning, but whether, in the end, the sentencing discretion miscarried, as regards a conclusion that a term of immediate imprisonment was the only appropriate sentencing option, in the presenting circumstances.
77 There is, of course, no underlying tariff applicable for a breach of a VRO. The offence is, of its very nature, a serious one. Section 61(1) of the Restraining Orders Act says that a person who is bound by a VRO and who breaches that order commits an offence with a penalty of $6,000, or imprisonment for two years, or both. The stipulated penalty for breach of a police order is the same: see s 61(2a).
78 Those significant statutory penalties speak loudly as to the seriousness of a breach of a restraining order and dictate how closely and carefully the underlying circumstances of such an offence must be assessed in every case. In the past there have, of course, been well referenced instances where terrible crimes of violence have been committed in the community against protected persons by individuals otherwise bound by a restraining order, but who chose to ignore it. Plainly, the statutory right to apply for a VRO is meant to assist the more vulnerable to protect themselves from violence, especially (but not solely) women who are the victims of domestic violence. Thus, issues of general and specific deterrence concerning offenders are more than usually important in this arena. To that end, I note a recent report canvassing some of these issues - Law Reform Commission of Western Australia, Enhancing Laws Concerning Family and Domestic Violence, Final Report (2014).
79 Having said that, every case must, in the end, be evaluated on its own particular factual and legal merits. For this particular case, it was accepted that, in respect of all breaches by Mr Wallam of the VRO, or a police order, there had been no acts of physical violence by him against the protected person. No kind of threat or intimidating behaviour presents, on the evidence available concerning the breach offences, to have ever been manifested from Mr Wallam. The facts presented to the learned magistrate also seem to suggest that there was some element of invitation back or at least consensual contact, by a request to collect clothing or something of that kind, at least in regard to the 28 November 2014 offence. That, of course, excuses nothing as regards that breach, but it bears upon the appropriate punishment.
80 While some kind of adverse inference might have been drawn from the facts put forward suggesting that the protected person was in hiding when the police arrived at the 39 Eliot Street premises on 28 September 2014, competing inferences are also available, some of which were canvassed in the oral submissions on this appeal. The actions of Mr Wallam unquestionably breached the terms of the VRO binding him. But they cannot, on the basis of all the evidence available, be seen to involve any scenario of physical violence, or calculated and flagrant contempt against the terms of the VRO binding him. Ignorance about the strict workings of a VRO, in the face of periods of separation and reconciliation and then heavy alcohol consumption at the end of a long-term relationship, are a more viable explanation for his misconduct, in my view.
81 In upholding ground 2 of Mr Wallam's appeal, I do not mean at all to convey that for some VRO breach cases, in which the circumstances of the offender include, as the learned magistrate said, a 'flagrant disregard' for court orders, that a term of immediate imprisonment will not present as the only appropriate sentencing option. But here, as I look at the levels of the previous penalties imposed upon Mr Wallam for his breach of the police order and for his breaches of the VRO, it is seen that his penalties were all fines. He was fined $1,000 for the breach of the earlier police order on 19 March 2014. Chronologically, he was fined $300 for the 1 October 2014 offence, and then fined again $250 for the 28 September 2014 offence.
82 In my view, an escalation in punishment for breaches of the VRO beyond those pecuniary penalties up to a term of 8 months' immediate imprisonment, where the underlying circumstances of the relevant breach again presented as benign, was inconsistent with a sound exercise of the sentencing discretion. That is so particularly in circumstances where Mr Wallam entered an early plea of guilty, co-operated with police and, as of 10 February 2015, had already spent more than two months in custody.
83 In D'Costa v Roe [2013] WASC 99; (2013) 228 A Crim R 350, Hall J dealt with an offender who had committed three VRO breaches over a period of less than three months. His Honour observed:
The fact that the appellant has offended within a short period of time of his previous offences needed to be viewed in the context of the nature and severity of those previous offences. It is a very large step from fines of $350 and $500 to a sentence of 8 months imprisonment to be immediately served [48].
84 I recognise there are some important differences as between the circumstances in D'Costa v Roeand in the current appeal, not least that s 61A(2) was held not to apply to the circumstances of the offender in D'Costa v Roe (a decision upheld by the Court of Appeal in Roe v D'Costa). Nonetheless, principles as expressed by Hall J, which I respectfully follow, indicate the need to carefully consider the relevant re-offending in the context of the particular circumstances of the prior offences.
85 I accept, of course, that where s 61A(5) is applicable, its effect is to establish a requirement towards imprisonment, if three discrete VRO breach offences occur. Additionally, it was not open for the learned magistrate to sentence an offender in Mr Wallam's situation to a term of imprisonment for less than 6 months (by reason of s 86 of the Sentencing Act). Nevertheless, there manifested factually a long-term family relationship scenario that was unwinding, with ensuing processes of separation, then brief reunifications, in an 'on-off' situation that sometimes occurs in the break-up of long-term relationships.
86 There were also indications Mr Wallam was finally making some positive efforts to change his life. He had been the primary care-giver for his son in the last few years. If there had been any suggestion of violence or threats or intimidation in any of the offences or the surrounding circumstances, that, of course, would present a very different scenario. But here there is no suggestion of such.
87 In all these circumstances, it seems to me that after a series of fines it was not reasonably open to the learned magistrate to conclude here that the ultimate sanction of immediate imprisonment was the only appropriate sentencing option.
88 I uphold ground 2 and allow Mr Wallam's appeal on that basis.
Ground 3
89 In the circumstances, it is not necessary to fully evaluate the third ground of appeal. However, I will offer some brief remarks.
90 Ground 3 resonates with the terms of s 8(1)(a)(iii) of the Criminal Appeals Act 2004 (WA), which provides that an appeal may be made to this court on the ground that the sentence imposed by the court of summary jurisdiction was 'excessive'. Here, by the terms of the submissions of the appellant, it is argued that the penalty was manifestly excessive.
91 For the reasons I have given above in allowing ground 2, it also seems to me that it was unreasonable here not to have imposed a term of suspended imprisonment which, in effect, would have allowed Mr Wallam one last opportunity to avoid an extended (ie, greater than 6 months) term of imprisonment. I note, in this context, what was said by Malcolm CJ in Chan v The Queen (1989) 38 A Crim R 337, 342 as regards determining whether a sentence is manifestly excessive.
92 Section 76(1) of the Sentencing Act allows a court to sentence an offender to a term of imprisonment of 60 months or less and to order that the whole of the term be suspended for a period (of not more than 24 months) set by the court.
93 Here, if Mr Wallam had been sentenced to a term of suspended imprisonment and had avoided further offending during his suspension period, he would then have avoided serving out a term of imprisonment.
94 Of course, had Mr Wallam reoffended in the suspension period, the effect of s 80(1) and s 80(3) of the Sentencing Act, taken together, is to create a strong likelihood that Mr Wallam would have been ordered to serve out the term of imprisonment that was suspended.
95 A term of suspended imprisonment still would have appropriately acknowledged the seriousness of his most recent VRO breach offence and operated as a personal deterrent to Mr Wallam against further offending of this nature.
96 In my view, the sentence of 8 months' immediate imprisonment was, in all the circumstances, excessive, even allowing for its backdating to 3 December 2014. That all being so, the exercise of the learned magistrate's sentencing discretion miscarried to that extent, and hence ground 3 of the appeal is correlatively made out.
Conclusion
97 The appeal has succeeded upon grounds 2 and 3. I must allow Mr Wallam's appeal and set aside his sentence of 8 months' immediate imprisonment upon charge PE114776 of 2014.
98 Accordingly, it becomes necessary to resentence Mr Wallam, pursuant to s 14 and s 41 of the Criminal Appeals Act. Some practical difficulties would arise were I to attempt to impose at this time a term of suspended imprisonment upon Mr Wallam. This is notwithstanding that, as I have said, punishment by suspended imprisonment would at 10 February 2015 have been the appropriate sentencing disposition for his 28 November 2014 VRO breach offence. But the underlying considerations are now somewhat different as at 11 March 2015, especially by reason of the amount of time Mr Wallam has now been in custody. (For simplicity, I leave aside any reference to conditional suspended imprisonment in the remarks below, except to note that similar considerations apply.)
99 The resentencing issues I now grapple with have been discussed previously: see Dragon v The State of Western Australia [2008] WASCA 252; Zinga v Johnson [2012] WASC 216; Casotti v Pickering [2013] WASC 174; Almonte v Beswick [2013] WASC 207; Wilson v Robertson [2014] WASC 421. They include:
(1) Mr Wallam, the successful appellant, has now been in custody since 3 December 2014 (ie, for over 3 months);
(2) offenders should receive an appropriate allowance for the time spent in custody whilst on remand: Narkle v Hamilton[2008] WASCA 31 and Sunfly [24] (see also s 87 of the Sentencing Act);
(3) time spent in custody must also be taken into account in re-sentencing after an appeal: AH v The State of Western Australia [127] and s 41(4) of the Criminal Appeals Act (see also s 9 of the Sentence Administration Act 2003 (WA));
(4) s 86 of the Sentencing Act prohibits the sentencing of an offender to a term of suspended imprisonment of 6 months or less for a single stand-alone offence;
(5) s 89(2) of the Sentencing Act prohibits the making of a parole eligibility order, if the fixed term of imprisonment to be imposed is less than 12 months, except in the circumstances set out in s 89(2)(a) and (b) which would appear not to apply to Mr Wallam's circumstances (see, however, s 22 and s 23 of the Sentence Administration Act);
(6) if a term of imprisonment is suspended, there is no power to backdate that term: see Dragon[51] and Zinga[23], [33]; and
(7) s 76(2) of the Sentencing Act dictates that a term of suspended imprisonment should not be imposed of a length greater than would be appropriate if the sentence were ordered to be immediately served.
100 There is a further, related, issue. If Mr Wallam were to commit an offence during a suspension period, he would then become liable for being dealt with by s 80 of the Sentencing Act, under one of the methods as set out in s 80(1)(a) to (d). Section 80(3) provides that, where a person commits an offence during a suspension period, a court must make an order under s 80(1)(a) that the person serve the term of imprisonment that was suspended, unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed. Given the express terms of s 80(3), a court would not at that point seem to be able to take into account time Mr Wallam had spent in custody prior to the term of suspended imprisonment being imposed: Zinga [34].
101 Section 41 of the Criminal Appeals Act deals with sentencing or re-sentencing on appeal: see The State of Western Australia v Munda[2012] WASCA 164; (2012) 43 WAR 137. Relevantly, s 41(4) provides:
The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -
(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but
(b) despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.
102 Section 14(5) of the Criminal Appeals Act also provides, as regards single judge appeals:
On an appeal against a sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.
103 Clearly, Mr Wallam has regrettably now spent more than 3 months in custody (ie, 3 December 2014 to 11 March 2014). This not insignificant period of time now spent in custody constitutes, in my assessment, a relevant change in his circumstances for the purposes of s 41(4)(a): AH[127].
104 In AH, the Court of Appeal observed that '[w]hen this court resentences an offender after a successful appeal against sentence, it is appropriate to take account of events which have transpired since the sentences under appeal were imposed' and that the court 'can and must take account of the fact' that the appellant in that case had been in custody for a period of time [127]. Consequently, I should take into account the more than 3 months Mr Wallam has been detained in custody as of today in determining an appropriate resentencing disposition for Mr Wallam.
105 This was, of course, an appeal purely against sentence. Mr Wallam's conviction for his 28 November 2014 VRO breach offence remains on his record, as do his previous convictions for breaches of a police order and the VRO. I must therefore return to navigate the regime set down by s 61A of the Restraining Orders Act, there being nothing in the terms of s 61A to indicate otherwise, concerning a resentencing following a successful appeal.
106 Clearly, s 61A(5) is prima facie engaged and, thus, as regards Mr Wallam's VRO breach convictions, its requirement towards imprisonment, unless excepted under s 61A(6), remains. On one view, s 61A(5) has been met by the period of 3 months' imprisonment already served by Mr Wallam. But if it is necessary for me to accommodate s 61A(5) by 'imposing' a penalty that includes imprisonment in resentencing Mr Wallam then s 61A(6) is engaged to remove that obligation.
107 Taking account as at today of s 61A(6), particularly the criterion under s 61A(6)(a), and the various issues I have now discussed favouring (if it were otherwise available) the imposition of a term of suspended imprisonment, I conclude that the presenting circumstances concerning Mr Wallam as at today are such that it is now 'clearly unjust' to impose any further term of imprisonment upon Mr Wallam, suspended or otherwise. Mr Wallam has, in effect, as of now already been punished by a period of more than 3 months' imprisonment in respect of the VRO offence. I note that I would still need to impose a minimum term of suspended imprisonment of more than 6 months: see s 86 of the Sentencing Act. That duration, in all the circumstances, is now too harsh. It would be clearly unjust, suspended or otherwise, given the period of over 3 months Mr Wallam has already spent in custody. I also mention that the criterion for s 61A(6)(b) is met.
108 So, I would, in the end, impose upon Mr Wallam by way of further punishment beyond the time already served, a community based order (CBO) for a term of 6 months, commencing from today. The primary requirement I impose upon him, as required under s 64 of the Sentencing Act, is a community service requirement. Then, pursuant to s 67, the requirement I consider appropriate is for him to perform 48 hours of unpaid community work, performed in accord with pt 9 of the Sentencing Act. Otherwise the provisions of the Sentencing Act in respect of CBOs will apply.
109 Accordingly, Mr Wallam's appeal is allowed and orders imposing a CBO of 6 months are made, replacing Mr Wallam's original sentence of 8 months' immediate imprisonment.
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