Weston v Cartmell
[2015] WASC 87
•16 MARCH 2015
WESTON -v- CARTMELL [2015] WASC 87
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 87 | |
| Case No: | SJA:1096/2014 | 19 FEBRUARY 2015 | |
| Coram: | HALL J | 16/03/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Suspended sentence imposed | ||
| B | |||
| PDF Version |
| Parties: | GRANT WILLIAM WESTON JILLIAN MONA CARTMELL BRENDAN MICHAEL GORGAN |
Catchwords: | Criminal law Appeal against sentence Trespass and multiple breach of bail offences Whether total effective sentence of 16 months imprisonment infringed the totality principle Unusual circumstances of offences and exceptional personal circumstances Whether suspended sentence appropriate |
Legislation: | Nil |
Case References: | Cartwright v The State of Western Australia [2010] WASCA 4 Corrigan v Kirkman [2011] WASC 254 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Edgill v Maguire [2013] WASC 472 Hamlet v Whitney [2013] WASC 100 Horner v Hunt [2013] WASC 241 Moir v The State of Western Australia [2014] WASCA 25 Pavlitsas v Rowe [2013] WASC 233 R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v McCarthy [2014] WASCA 210 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JILLIAN MONA CARTMELL
BRENDAN MICHAEL GORGAN
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T R WATT
File No : AL 3325 of 2013, AL 995 - 999 of 2014, AL 1000 - 1120 of 2014, AL 1302 - 1454 of 2014
Catchwords:
Criminal law - Appeal against sentence - Trespass and multiple breach of bail offences - Whether total effective sentence of 16 months imprisonment infringed the totality principle - Unusual circumstances of offences and exceptional personal circumstances - Whether suspended sentence appropriate
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Suspended sentence imposed
Category: B
Representation:
Counsel:
Appellant : P D Yovich
Respondents : Mr D J Anderson
Solicitors:
Appellant : Paul Yovich
Respondents : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Cartwright v The State of Western Australia [2010] WASCA 4
Corrigan v Kirkman [2011] WASC 254
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Edgill v Maguire [2013] WASC 472
Hamlet v Whitney [2013] WASC 100
Horner v Hunt [2013] WASC 241
Moir v The State of Western Australia [2014] WASCA 25
Pavlitsas v Rowe [2013] WASC 233
R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v McCarthy [2014] WASCA 210
1 HALL J: This is an appeal against sentence.
2 On 17 December 2014 the appellant was sentenced to a total effective sentence of 16 months' immediate imprisonment in the Magistrates Court at Albany. That sentence was imposed for one offence of trespass contrary to s 70A of the Criminal Code (WA) and numerous offences of breaching bail contrary to s 51 of the Bail Act 1982 (WA). The appellant seeks leave to appeal against the total effective sentence.
3 On 22 December 2014 the appellant filed an appeal notice. The single ground of appeal is as follows:
The learned sentencing Magistrate imposed an aggregate sentence that did not bear a proper relationship to the overall criminality involved in all of the offences, having regard to the circumstances in which those offences were committed, the appellant's plea of guilty at the first opportunity to the breach of bail offences and the appellant's lack of criminal record and highly favourable personal antecedents.
The facts
4 The appellant and the complainant had been in a domestic relationship since 2006 and were married in March 2012. In April 2013 they separated and the complainant purchased a new house to which she moved. They continued to see each other and had periods of reconciliation. They also had contact in relation to a business in which they both had an interest. The appellant had some personal items at the complainant's new house but they continued to reside separately.
5 In late July 2013 the appellant returned to his parents' farm in New Zealand. He did so because his parents had become ill and he needed to care for them. He remained there for several months. The complainant travelled to New Zealand on two occasions, in September and October 2013, to visit the appellant. At that point the relationship had resumed. However, in December 2013 the complainant became depressed and anxious and decided to end the marriage. She sent the appellant several emails on 15, 16 and 18 December 2013 telling him that the marriage was over and that she did not want to see him.
6 On 19 December 2013 the appellant arrived in Perth from New Zealand and travelled to Albany with friends who dropped him near the former matrimonial home. At about 11.00 pm he walked to the complainant's new house, climbed a fence and spent some time walking around the property. At this time the appellant had some property, including work vehicles and clothes at the complainant's house. The complainant had put all these items into a locked shed.
7 At about 1.00 am the appellant approached the front door and called out. At this time the complainant and a male friend were awake and sitting on a couch in her house. The door was unlocked but was secured by a security chain. The complainant told the appellant to leave but he forced open the door and entered. He was then tackled by the complainant's male friend who held him down and tied him up. The police were called and the appellant was arrested and charged with trespass.
8 When interviewed by the police the appellant admitted going to the property and forcing open the door. He claimed he had gone to the complainant's house to get his work vehicle. He also claimed that he had lived in the house for a period before going to New Zealand and that the deposit to purchase that property had been paid from a joint bank account. He made similar claims when he gave evidence at a trial in respect of the trespass charge. The magistrate accepted that $10,000 of the deposit for the complainant's house came from a business account in which the complainant and the appellant had a shared interest. She also accepted that the appellant had property at the complainant's house. However, she concluded that the complainant was the owner and occupier of the house, that the appellant had been clearly told to leave and that he had no lawful excuse or honest claim of right which justified his forcible entry.
9 After being arrested and charged on 20 December 2013 the appellant was released on bail. The conditions of bail included a protective condition that he was not to contact or attempt to contact the complainant. Sometime shortly thereafter the appellant left Albany and returned to New Zealand. Between 24 December 2013 and 17 March 2014 the appellant breached the conditions of his bail by attempting to contact the complainant by emails on 153 occasions. It is not clear why these were described as attempts to contact the complainant. Whether this is because the emails were sent but not received or were blocked was not clarified when these breaches were later dealt with.
10 Between 24 December 2013 and 12 January 2014 the appellant also breached the protective bail condition by contacting the complainant by mobile and landline telephones. He did this on 126 occasions. It would seem that some of the communications were text messages to which the complainant responded, but how many were text messages and how many were voice calls was not identified. Nor were any details of the content of these communications provided. It would seem that the reason for this was that the only information available to the police was telephone records of the complainant showing calls received and made.
11 At the sentencing hearing on 17 December 2014 the magistrate asked the prosecutor to provide samples of the communications so that she could determine their nature. The following exchange then occurred:
PROSECUTOR: There is no samples of the text messages, ma'am.
HER HONOUR: Okay.
PROSECUTOR: On many of the occasions, I don't think the victim answered or responded. There is no examples of the calls or the texts, ma'am, or the emails. I think the police notes, within the brief, concede that they generally related to business inquiries. I can't assist any further with that (ts 129).
12 In his submissions on sentence defence counsel said that after returning to New Zealand the appellant was concerned about the business that he and the complainant owned and property in which they had a joint interest. He said that the communications with the complainant were in regard to the business and property and that there were responses from the complainant. This was not disputed by the prosecution. However, as the magistrate pointed out, the communications were still in breach of the bail condition and it would have been more appropriate for the appellant to have his lawyer deal with any property dispute.
13 It is not apparent how the breaches of bail came to light. Throughout this period the appellant remained in New Zealand. It is not clear whether the breaches continued because the appellant was out of the jurisdiction or because there was a delay in the complainant reporting them to the police. In any event, sometime in late March 2013 the appellant became aware that the police were intending to lay charges in respect of the breaches of bail. He then voluntarily returned from New Zealand, handed himself in to the police and participated in an interview. In that interview he made full admissions to making telephone calls and sending emails and texts to the complainant. Charges were laid in respect of each act of communication or attempted communication. These comprised 126 charges relating to telephone contact and 153 charges relating to email contact.
14 The appellant spent seven days in custody before being again released on bail on 2 April 2013. The bail again included a protective condition and the appellant remained on that bail for the following eight months until sentenced on 17 December 2014. There was no suggestion that there was any recurrence of his behaviour in contacting or attempting to contact the complainant in that eight month period.
15 The appellant entered pleas of guilty to the breach of bail charges. It was accepted that he did so at the first reasonable opportunity. He entered a plea of not guilty to the trespass charge and that matter went to trial on 8 July 2014. That trial was adjourned part heard to August 2014 and then to 17 December 2014 when the magistrate gave her decision and sentenced the appellant on all charges. Although the trespass charge went to trial much of the evidence was not in dispute. The only issues were whether the appellant had a lawful excuse for entering the complainant's house and whether he had an honest claim of right to do so.
16 After being sentenced on 17 December 2014 the appellant remained in custody until 23 December 2014 when he was granted bail by Corboy J. The conditions of bail again included a requirement that he not contact the complainant. That bail has continued until the determination of this appeal. There has been no suggestion of any breach of the conditions of bail.
Personal circumstances
17 At the time he came to be sentenced the appellant was aged 42 years old and was a first offender. He had no record of offending of any nature in either Australia or New Zealand.
18 The appellant was born in Stratford, New Zealand and had grown up on the family farm. He left New Zealand in his early twenties and came to Western Australia. He had two children from a previous relationship, a son aged 14 years and a daughter aged 12 years. He provided child maintenance in respect of those children, with whom he maintained regular contact. He also maintained good relations with the mother of those children.
19 The appellant commenced a relationship with the complainant in 2006 and they married in March 2012. There were no children born of that union. The appellant said that this relationship had been a good one until 2013.
20 The appellant has been gainfully employed throughout his adult life. He and his previous partner started a business in 2000 which at various times had employed up to 40 people. That business was still running at the time of sentencing. In 2007 the appellant started a second business with the complainant and that business was in the process of voluntary liquidation at the time of sentencing.
21 A pre-sentence report stated that the appellant had no substance abuse issues or any need for programmes. There was a suggestion that psychological counselling could be of benefit to give the appellant a better understanding of appropriate emotional and consequential behaviours. However the appellant presented with no obvious cognitive limitations and it was suggested that the offending was an emotional reaction to the breakdown of his marriage.
22 The appellant was assessed as being a minimal risk of re-offending and as having significant insight into his offending behaviour. In particular, he had admitted that his behaviour was irresponsible and that 'it is probably the most stupid thing I have ever done and I feel extremely embarrassed about my conduct'. He said that at the time he had a 'mountain' of things on his mind, such as his parents being very unwell and needing to help run the family farm in New Zealand, the breakdown of his marriage and concerns regarding apparently missing funds from the second business. He said that these issues made him feel extremely anxious and stressed and that he was not thinking as he normally would do.
Submissions on sentence
23 Counsel for the appellant in the Magistrates Court submitted that the breaches of bail occurred in a context where the appellant was in New Zealand and feeling concerned about the business and property in Australia. His contact with the complainant was an attempt to try to find out what was going on with the business and the property. These attempts occurred simultaneously with letters that had been sent to the complainant by a lawyer acting on the appellant's behalf. Reference was made to the appellant's personal circumstances and the fact that he had voluntarily returned to face the charges, had fully cooperated with the police and had pleaded guilty at the first reasonable opportunity. Counsel submitted that the offences occurred during a difficult period in the appellant's life when he was trying to deal with the marital breakdown as well as the stress of caring for his sick father. This was said to be an anomaly in the appellant's life and there was no risk of re-offending. Whilst counsel accepted that the number and continuation of the breaches made them serious the particular circumstances of the offending and the unusually favourable personal circumstances made a suspended sentence of imprisonment appropriate.
24 The prosecutor submitted that the amount of contact constituted intimidation and pressure. He said that the complainant was susceptible and that the bail conditions had been put in place to protect her. He said that the appellant had ignored his bail conditions and had shown no respect for the orders of the court. In regard to a suspended sentence it was suggested that the appellant might return to New Zealand and that such a sentence would be ineffective. The prosecutor said that an immediate term of imprisonment was appropriate.
Sentencing remarks
25 The magistrate accepted that the appellant had pleaded guilty to the breach of bail charges at an early opportunity and was entitled to a 25% discount on his sentence: s 9AA Sentencing Act 1995 (WA).
26 Her Honour referred to the pre-sentence report, the appellant's expressions of remorse and the fact that he was a first offender. She said that the most mitigatory factors were the fact that he had returned voluntarily to Australia to cooperate with the police in regards to the breach of bail, that he had entered early pleas of guilty, that he had demonstrate remorse and that he had no prior criminal record.
27 Her Honour said the offences of breaching bail were serious because they were a 'systemic breach'. She said that she accepted that the volume of offending was such that the communication was a form of intimidation or pressure. In these circumstances there was a need for an element of general deterrence. Her Honour accepted that the appellant shared property and business interests with the complainant but said that the correct way to deal with any dispute in that regard was through a lawyer. She also emphasised the importance of protective bail conditions.
28 Her Honour then said:
Balancing all of those factors, and really I think it's conceded by counsel, in my view is that imprisonment is appropriate. The question then becomes whether the term - they're so serious because of the volume of offences, the consistency and systemic breaches that that is the only option before the court. The question is whether there is anything before the court that should suspend those terms. And I turn my mind to the factors as outlined in the various decisions, actually, by the Supreme Court. By balancing all of those factors, my view is that the matters are too serious to suspend the terms that I'm about to impose (ts 137).
29 Her Honour then sentenced the appellant to 6 months' imprisonment for each of the 126 charges of breaching bail by telephone contact with each of those terms to be served concurrently, 6 months' imprisonment for each of the 153 charges of breaching bail by email contact with each of those terms to be served concurrently but cumulatively on the sentence for the breaches of bail by telephone and 4 months' imprisonment for trespass to be served cumulatively on the other terms. This produced a total effective sentence of 16 months' imprisonment. An order was made that the appellant be eligible for parole and, in doing so, the magistrate noted that his prospects of rehabilitation were good in light of the pre-sentence report.
Relevant principles
30 The appellant seeks leave to appeal the total effective sentence of 16 months' immediate imprisonment on the basis that the principle of totality was offended given the circumstances in which the offences were committed, the appellant's early pleas of guilty to the breach of bail offences, his lack of criminal record and highly favourable personal antecedents.
31 The totality principle has two limbs. The first limb is relied upon here. It requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant circumstances, including those referable to the appellant personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
32 Grounds of appeal that claim that the totality principle has been infringed assert implied error. That is, though no express error is apparent from the reasons of the sentencing magistrate the result is said to be one that cannot be reconciled with a proper exercise of sentencing discretion. What must be demonstrated in such a case is that the sentence imposed was unreasonable or plainly unjust.
33 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would have been arrived at by simply adding up all the terms appropriate for the individual offences: Roffey [24] and R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375, 260. (Street CJ). In the present case what was asserted is not that the length of the sentence was wrong but that it should have been suspended and that the failure to suspend it made it disproportionate in all of the circumstances.
34 The maximum penalty for trespass is imprisonment for 12 months and a fine of $12,000: s 70A Criminal Code (WA). There are very few decisions in relation to trespass and no customary range of sentencing can be discerned. However comparable cases may be useful as a reference point for ensuring broad consistency in sentencing. I have had regard to the following cases - Horner v Hunt [2013] WASC 241 and Moir v The State of Western Australia [2014] WASCA 25. Those cases do not suggest that the 4 months' imprisonment imposed for the trespass offence in this case was inappropriate. The appellant does not contend otherwise. Rather it is said that a sentence of 4 months' imprisonment could not have been imposed unless the total effective sentence exceeded 6 months. The real issue is not whether a sentence of 4 months' imprisonment on the trespass charge was inappropriate but whether the total effective sentence of 16 months should have been suspended.
35 The maximum penalty for a breach of protective bail conditions is imprisonment for 3 years, a fine of up to $10,000 or both: s 51(2a) of the Bail Act. While the maximum penalty for a breach of bail by failing to appear is the same as that for a breach of protective bail, the circumstances of a breach of protective bail may justify a higher penalty because it involves both disrespect of an order of the court and because protective bail is imposed to protect the victim or witnesses: Hamlet v Whitney [2013] WASC 100 [20]. As with trespass, it is not possible to discern a customary range of sentences for offences of this type. However, for the sake of consistency I have considered the following cases - Hamlet v Whitney, Edgill v Maguire [2013] WASC 472, Corrigan v Kirkman [2011] WASC 254 and Pavlitsas v Rowe [2013] WASC 233.
36 Sentences must be commensurate with the seriousness of the offence: s 6(1) of the Sentencing Act. The seriousness of the offence must be determined by taking into account the factors in s 6(2). Section 6(4) requires a court not to impose a sentence of imprisonment of any type unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Section 39(2) of the Act sets out the various sentencing options. Section 39(3) provides that a court must not use a sentencing option in subsection (2) unless it is inappropriate to use any less serious option. The effect of this is that imprisonment of any type cannot be imposed unless the seriousness of the offence is such that only imprisonment is justified or the protection of the community requires it. Further, a term of immediate imprisonment cannot be imposed unless the sentencer is satisfied that suspended imprisonment is inappropriate: Cartwright v The State of Western Australia [2010] WASCA 4 [8].
37 In determining whether a suspended imprisonment order can be imposed a sentencer must revisit all of the circumstances relevant to the decision to impose the term of imprisonment: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84] and [85]. A sentence should be suspended whenever all of the circumstances make it appropriate to do so: The State of Western Australia v McCarthy [2014] WASCA 210 [56].
Merits of the appeal
38 The large number of breaches of bail made this a serious example of offending of this type. However, there were a number of other features of the offending that weighed against that factor. Furthermore, this was a case where the personal circumstances of the appellant were truly exceptional.
39 The number of offences has to be seen in the context that during the whole of the period that they occurred the appellant was out of the country living in New Zealand. His marriage to the complainant had ended but they continued to share property interests and interests in a continuing business. The prosecution accepted that many of the communications related to business matters. Whilst such communications were clearly prohibited, it is difficult to see on what basis the prosecutor asserted, and the magistrate accepted, that the communications were intimidatory in nature. The number of the communications could not be viewed in isolation from their purpose and subject matter. There was no evidence that any of the communications were harassing or threatening in tone, content or nature. There was no information regarding communications being at inconvenient times or being deliberately repetitive. The number of communications, when spread over the periods in question, did not support any conclusions in those respects.
40 All of the available information indicated that the appellant's conduct between December 2013 and March 2014 was an aberration. He was a mature man of previous good character and a strong work history. Communications and attempted communications with the complainant ceased on 17 March 2013 and the appellant then voluntarily returned to Western Australia, attended on the police and made full admissions to the breaches of bail. Notwithstanding those breaches, he was again released on bail on similar conditions and complied with that bail over the following eight months. He has also complied with similar bail conditions pending the determination of this appeal.
41 The appellant's cooperation with the police and early pleas of guilty to the breach of bail offences not only facilitated the course of justice but was clearly indicative of acceptance of responsibility and of remorse. This was referred to in the pre-sentence report and accepted by the magistrate. It was also accepted that he was at minimal risk of re-offending. By the time he was sentenced the appellant had accepted that his former marriage had ended and had formed a new relationship with a partner who was expecting his child. Specific deterrence did not require a sentence of immediate imprisonment in these circumstances.
42 Multiple offences of breaching protective bail conditions are often of a very serious nature. That is particularly so where there is repeated offending after being dealt with for a first offence by a court. In such cases it may be an aggravating factor that an offender has continued to breach bail despite being dealt with for previous such offences. That is an aggravating feature that is not present here. After being charged the appellant did not again breach his bail.
43 General deterrence is a significant factor in respect of offences of breach of bail. It is important that those who are released on bail appreciate the importance of complying with it. Compliance is likely to be undermined if breaches are dealt with by derisory penalties. But that does not necessarily mean that a suspended sentence could not be imposed here.
44 In my view, the offending in this case was sufficiently serious, notwithstanding the factors I have referred to, to justify a sentence of imprisonment. However, having regard to all of the factors, including those personal to the appellant this was a truly exceptional case where suspending such a sentence was appropriate. A suspended sentence could not properly be excluded. The need for the sentence to reflect the seriousness of the offences and to also incorporate general deterrence could be met by imposing a suspended sentence. The fact that the appellant had spent some time in custody was also a relevant consideration.
45 The total effective sentence of 16 months' immediate imprisonment breached the totality principle because that sentence was disproportionate to the total offending having regard to all of the factors including those personal to the appellant.
46 I would make the following orders:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The sentence imposed by the magistrate be varied by ordering that the total effective sentence of 16 months' imprisonment be suspended for a period of 12 months.
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