Western Australia

Court of Appeal

  • McCoombe v The State of Western Australia [2016] WASCA 227 (20 December 2016) – Supreme Court of Western Australia Court (Court of Appeal)
    Aboriginal and torres strait islander people’ – ‘Aggravated assault occasioning bodily harm’ – ‘Blaming the victim’ – ‘Deterrence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Public protection’ – ‘Vulnerable groups

    Charge/s: Aggravated assault occasioning bodily harm x 4.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant, an Indigenous man, and the female partner (‘D’) had been in a domestic relationship. Counts 1-3 involved the appellant, who was jealous of the victim, punching her, strangling her, striking her with a chair in the back of the head, and striking her several times with a crate. Count 4 occurred when the appellant again became jealous of the victim. He verbally abused her and poured a kettle full of boiling water down her back, causing second and third degree burns. He then punched and kicked her. The appellant prevented the victim seeking medical treatment for several days. The appellant was sentenced to 5 years imprisonment on count 4, 1 year and 2 months imprisonment on counts 1 and 3, and 1 year imprisonment on count 2. The sentences on counts 1 and 4 were to be served cumulatively.

    Issue/s: The sentence imposed on count 4 was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Newnes and Mazza JJA noted the circumstances in which count 4 was committed at [33]:

    ‘The pouring of a kettle of boiling water on D was a particularly cruel and senseless act which was plainly capable of causing very serious injuries. In the spectrum of physical injuries constituting bodily harm sustained by D, they were severe. The offence entailed an abuse of the relationship of trust which existed between the appellant and D. D was in a vulnerable position by reason of the greater physical strength of the appellant and the degree to which he had intimidated her by his past acts of violence: as to which we respectfully adopt Mitchell J's statement in Bropho v Hall [2015] WASC 50 [16], which was approved by this court in Gillespie v The State of Western Australia [2016] WASCA 216 [48]’.

    Their Honours referred to the fact that this was ‘part of a pattern of serious and ongoing domestic violence against D’. The appellant had no insight into his offending and sought to justify what he did by blaming the victim. His criminal history was poor and showed that he posed a high risk of further serious violent offending against domestic partners. Retribution, deterrence and public protection were important factors on sentence here (see [34]-[35]).

    While acknowledging the severity of the sentence imposed on count 4, Newnes and Mazza JJA concluded that, in light of all the relevant circumstances noted above (including the appellant’s plea of guilty and his criminal history), count 4 was an offence of the ‘utmost gravity of its kind’. The sentence could not be said to be manifestly excessive (see [36]).

  • The State of Western Australia v Smith [2016] WASCA 153 (31 August 2016) – Supreme Court of Western Australia (Court of Appeal)
    Aggravated grievous bodily harm’ – ‘Aggravating factor’ – ‘Cruelty to animal’ – ‘Defensive injury’ – ‘Physical violence and harm

    Charge/s: Aggravated grievous bodily harm, aggravated unlawful wounding, assaulting a public officer, cruelty to animal.

    Appeal Type: Crown appeal against sentence.

    Facts: The State appealed against a total effective sentence of 2 years and 2 months imprisonment imposed on the respondent in respect of a number of offences. The most significant offences occurred on 5 August 2015 while the respondent was subject to a suspended imprisonment order. The respondent attacked his former female de facto partner and a police officer using a claw hammer. He pleaded guilty to unlawful wounding and causing grievous bodily harm. He also pleaded guilty to assaulting a public officer and cruelty to the officer’s police dog.

    Issue/s: One of the grounds of appeal was that the sentence imposed for grievous bodily harm and unlawful wounding was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. Buss J (Mazza JA agreeing) held that the sentence of six months imprisonment imposed for the unlawful wounding offence was manifestly inadequate. This was in light of a number of factors including: the maximum penalty (7 years imprisonment); the seriousness of the offending (including the vulnerability of the victim – his former de facto partner); the general pattern of sentencing for offences of this kind; the importance of appropriate punishment and personal and general deterrence; the respondent’s unfavourable personal circumstances and antecedents (including a prior history of family violence offences); and all mitigating factors (see [27]-[32]).

    Buss J also held that 18 months imprisonment for grievous bodily harm was also manifestly inadequate in light of the seriousness of the offending (especially the injuries the victim sustained in trying to defend herself and the fact that the respondent was significantly larger and more powerful than the victim) and all other relevant factors (see [39]-[40]).

    In a minority judgment, Mitchell JA also upheld the appeal. This was in light of a number of factors including that His Honour found that the respondent’s offending was a serious example of grievous bodily harm. It was particularly significant that the injury sustained by the victim was a defensive wound, the level of violence was high, the victim did not provoke the attack and she was no threat to the respondent. Mitchell JA also noted that it was a significant aggravating factor that the offence occurred in a family and domestic relationship (see [95]-[96]).
  • Conomy v Western Australian Police [2016] WASCA 31 (18 February 2016) – Western Australia Court of Appeal
    Breach of violence restraining order’ – ‘Evidence issues’ – ‘Following, harassing, monitoring’ – ‘Unrepresented litigant

    Charge/s: Breach of violence restraining order.

    Appeal type: Application for leave to appeal from Supreme Court’s decision to refuse leave to appeal.

    Facts: The appellant was convicted of breaching a violence restraining order by sending three text messages to the complainant. He was arrested and participated in a video-recorded interview. Leave to appeal to the Supreme Court against conviction and sentence was refused.

    Issue/s: Whether the primary judge erred in refusing to grant leave to appeal against conviction. The appellant was self-represented. The grounds were interpreted as raising issues including that:

    1. The DVDs of the recorded police interview should not have been admitted in circumstances where the discs served to the appellant were labelled differently and were blank.
    2. The magistrate erred by basing his decision on the evidence of the recorded interview which was ‘not worthy of any significant weight’.
    3. The evidence was not capable of establishing, beyond reasonable doubt, that the interim violence restraining order was still in force, and had not been amended, at the time of breach.
    4. The primary judge’s reasons were inadequate.

    Decision and Reasoning: The appeal was dismissed. In relation to ground 1 above, there was no substance to the appellant’s allegations. The labelling of the DVDs was immaterial and even if the discs were blank, the appellant made it clear at trial that he was aware of their contents. There was no issue about the authenticity of the recording, and no challenge as to its fairness (See [8]). Second, the magistrate based his decision on all the evidence before him and indicated that, even without reference to the recorded interview, there was a compelling case the appellant breached the order (See [9]). Third, it was open to the magistrate to be satisfied beyond reasonable doubt that the interim order was still in force at the time of breach. It was implicit in the complainant’s evidence that the interim order was still in force. The appellant made no suggestion to any witness in cross-examination that the interim order was not still in force. Statements in the recorded interview reflected the appellant’s understanding that the order was still in force. Nothing in the evidence suggested the order had been cancelled or amended (See [12]). Finally, the primary judge’s reasons clearly explained why he concluded that none of the grounds had any reasonable prospects of success (See [13]).

  • Conomy v Maden [2016] WASCA 30 (18 February 2016) – Western Australia Court of Appeal
    Following harassing, monitoring’ – ‘Interim violence restraining order’ – ‘Questioning witnesses’ – ‘Stalking’ – ‘Systems abuse’ – ‘Unrepresented litigant

    Charge/s: Stalking.

    Appeal type: Application for leave to appeal from Supreme Court’s decision to refuse leave to appeal.

    Facts: The appellant and the complainant went on six dates. The complainant made it clear she did not want to see the appellant again. The appellant repeatedly sent her emails, letters and text messages. She took steps to discourage further communication including obtaining an interim violence restraining order which prohibited contact. But the appellant persisted. The appellant was charged with a stalking offence and fined $3000. Leave to appeal against sentence and conviction was refused in the Supreme Court.

    Issue/s: Whether the primary judge erred in finding that none of the grounds of appeal against conviction had any reasonable prospect of success.

    Decision and Reasoning: The appeal was dismissed. None of the many and detailed grounds of appeal that the appellant advanced had any reasonable prospect of success. Some of the reasons for this finding included that the magistrate was correct in treating the existence and breach of the interim violence restraining order as relevant to the complainant’s subjective fear and apprehension and assessing whether the communication could reasonably be expected to cause fear or apprehension in the complainant (See ‘Primary Ground 5B/Appeal Ground 6’ [96]).

    Additionally, the appellant argued that the objective element of the stalking offence was not satisfied because he could not reasonably have expected his actions to have intimidated a normal person. However, the question was not what the appellant could reasonably have expected but rather whether the manner of his communication with complainant could reasonably be expected to cause her fear or apprehension. Further, the magistrate did not give inordinate weight to the evidence of the complainant because the complainant’s evidence was central to questions of whether the communications occurred, and whether the manner of these communications subjectively caused her fear and apprehension (See ‘Primary Grounds 9A and 9B/Appeal Grounds 9 and 10’ [109] - [110]).

    Finally, the magistrate did not err in assessing the complainant to be a reliable witness and did not err in refusing to permit the appellant to ask certain questions. The appellant, an unrepresented litigant, had a ‘tendency to become distracted by, and fixated on, issues not significant to the question of his guilt of the charged offence’. The appellant was entitled to ask questions of the complainant relevant to matters in issue at trial. However, the magistrate had a responsibility to ensure the appellant did not abuse this right by the manner and length of his cross-examination of the complainant (See ‘Primary Ground 16/Appeal Ground 12’ [115]-[118]).

    ‘The paramount responsibility which a judicial officer presiding over a criminal trial owes to the community is ensuring that the accused person receives a fair trial. However, the judicial officer also owes other concurrent responsibilities to the community. In a case such as the present they include a responsibility to see that the accused does not utilise the proceedings as a vehicle for harassment of the alleged victim. The exercise of that responsibility will require vigilance in confining an accused person to asking questions which are relevant to the issues raised for the court's determination’ (See ‘Primary Ground 16/Appeal Ground 12’ [117]).

  • The State of Western Australia v Stoeski [2016] WASCA 16 (19 January 2016) – Supreme Court of Western Australia (Court of Appeal)
    Deterrence’ – ‘Murder’ – ‘People affected by substance abuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing

    Charge/s: Murder (two counts).

    Appeal Type: Appeal against sentence.

    Facts: The first victim was the respondent’s long term partner. He had an unfounded and delusional belief in her infidelity. He killed her by asphyxiation in their bedroom. After killing her he bound her head and neck with multiple layers of duct tape and wrote derogatory remarks across her forehead. The second victim was the respondent’s long-term male friend and associate. He had an unfounded and delusional belief that his friend was spreading rumours about him. He stabbed him three times and struck him repeatedly to the head with a chrome vehicle component. The respondent had a history of mental illness and had ingested a substantial amount of illicit drugs in the period leading up to the offences. He was sentenced to life imprisonment with a non-parole period of 21 years for each count. The sentences were to be served concurrently.

    Issue/s: Whether the non-parole periods were manifestly inadequate.

    Decision and Reasoning: The appeal was upheld.

    The Court held that these murders were at the upper end of the scale of seriousness. The killings were unprovoked and the first victim was extremely vulnerable as she was smaller in stature than the respondent and isolated in her bedroom. The respondent treated the first victim in a degrading manner and he made no attempt to seek medical assistance. The killing has deprived their children of their parents (see further at [153]). Mitigating factors included his plea of guilty, genuine remorse and good prospects of rehabilitation. However, these mitigating factors were outweighed by the brutal and sustained nature of the attack and the respondent’s entrenched drug abuse. The appellant’s rehabilitation prospects had to be understood in the context of the drug abuse and the difficulty of predicting rehabilitation progress for offenders of that kind. As such, the main sentencing considerations were just punishment and personal and general deterrence. The non-parole period on each count was increased to 27 years.

  • The State of Western Australia v Churchill [2015] WASCA 257 (23 December 2015) – Western Australia Court of Appeal
    Aboriginal and torres strait islander people’ – ‘Alcohol’ – ‘Community protection’ – ‘Deterrence’ – ‘Male victims’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    Appeal type: State appeal against sentence.

    Facts: The deceased was in a domestic relationship with the respondent. The day prior to the murder, the respondent approached the deceased with a broken bottle and threatened to kill him. The deceased told the respondent he wanted to leave her. The next day the respondent threw bottles at the deceased, threatened to kill him, and chased him wielding a bottle. Later, the respondent and the deceased drank alcohol together. An argument broke out in which the both the respondent and the deceased threatened to kill each other. At some time between that night and the next morning, both the respondent (who was intoxicated) and the deceased returned home. The respondent stabbed the deceased with two knives and assaulted him with an electric frypan, causing his death. In total, there were 14 stab injuries and 26 incised injuries. The respondent cleaned up the premises, changed out of her clothes, and went to a neighbour’s place saying she had found the deceased injured. ‘[The deceased] had been the victim of sustained physical abuse at the hands of the respondent, who the sentencing judge described as bigger and stronger than the 'weak and vulnerable' [deceased]. This case confirms the experience of those who work in the criminal justice system in this State that, particularly in alcohol and/or other drug fuelled dysfunctional relationships and communities, it is not uncommon for a male to be a victim of domestic violence’ (See [15]). The respondent was sentenced to life imprisonment with a non-parole period of 17 years.

    Issue/s: The non-parole period was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed and the respondent resentenced to a non-parole period of 21 years. The nature and extent of the respondent’s very significant prior record of violent offending underscored the need to give significant weight to the sentencing objectives of punishment, protection of the public and personal deterrence (See [35]). The circumstances of the respondent’s offence placed it at the high end of the scale of seriousness of the offence of murder – she intended to kill the deceased, engaged in a ‘sustained, prolonged, frenzied attack’, used multiple weapons, and went to considerable lengths to cover up the murder. Her long standing alcoholism contributed to the crime. However, of greater significance, was ‘her inability to control her volcanic eruptions of anger, and the regularity and normalisation of her use of violence’ (See [37]). The only mitigating factor was the respondent’s disadvantaged and dysfunctional upbringing.

  • Rimington v The State of Western Australia [2015] WASCA 102 (29 May 2015) – Supreme Court of Western Australia – Court of Appeal
    Arson’ – ‘Criminal damage by fire’ – ‘Damaging property’ – ‘Deterrence’ – ‘Mitigating factors’ – ‘mental illness’ – ‘Sentencing’ – ‘Totality

    Charge/s: Criminal damage by fire (4 counts).

    Appeal Type: Appeal against sentence.

    Facts: The appellant had recently separated from his wife and had commenced discussion relating to the distribution of assets. The appellant lit three fires. Count 1 related to the destruction by fire of the contents of business premises effectively owned and controlled by the appellant and his former wife. Count 2 related to damage caused by the same fire to a neighbouring unit and common property. Count 3 concerned a separate fire causing extensive damage to an investment property owned by the appellant's former wife. Count 4 related to a third fire causing extensive damage to the former family home and a car.’ The total damage was worth approximately $1.5 million. The appellant pleaded guilty and was sentenced to a total effective sentence of 6 years’ imprisonment, taking into account various orders of concurrency and cumulation.

    Issue/s: Some of the issues concerned –

    1. Whether the sentencing judge sufficiently took into account the appellant’s depression as a mitigating factor.
    2. Whether the sentencing judge placed excessive weight on general deterrence.
    3. Whether the sentence was manifestly excessive, as it infringed the first limb of the totality principle.

    Decision and Reasoning: The appeal was dismissed.

    1. A psychiatrist’s report expressed the view that the appellant’s acute depression and adjustment problems relating to his separation mitigated against the seriousness of his actions and affected his capacity for sound judgment and self-control. The appellant’s intoxication was also relevant (see at [30]). While the sentencing judge made a factual error by concluding that the appellant was taking anti-depressants, this error was not material. The sentencing judge expressly referred to the psychiatric report, and more specifically, the error did not affect the judge’s assessment of the appellant’s good prospects of rehabilitation.
    2. The sentencing judge observed that general deterrence was the dominant sentencing factor in arson cases. The appellant submitted that this statement was in error because ‘no one purpose of sentencing can be said to have the dominant role’ as sentencing requires a ‘sensitive approach’ which involves weighing the purposes of punishment and all the relevant circumstances of each case (see at [41]). Beech J (with whom Buss JA and Mazza JA agreed) rejected this argument and confirmed that there is a consistent line of authority that general deterrence is the dominant sentencing consideration in cases of arson.
    3. The Court found that this was a serious example of arson because the appellant lit three fires over 1 hour, the offending involved a degree of preparation and the offending was founded on the appellant’s anger towards his former wife. The offences were founded on the appellant's anger towards his ex-wife and his intention was to destroy the properties so as to defeat her claim to them. That context aggravated the offending. The sentencing judge did take into account various mitigating factors including the appellant’s remorse, good character, good rehabilitation prospects, low risk of re-offending and the fact he was suffering from depression when he committed the offences. Furthermore, the sentencing judge did consider issues of totality by ordering the sentences on counts 1 and 2 to be concurrent because they related to the same fire and ordered that the sentences on counts 3 and 4 be partially concurrent. As such, the Court found that the sentence imposed did bear a proper relationship to the overall criminality of the offending.
  • Oxenham v The State of Western Australia [2015] WASCA 30 (18 February 2015) – Supreme Court of Western Australia (Court of Appeal)
    Aggravated assault occasioning bodily harm’ – ‘Aggravating factor’ – ‘Exposing a child’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Separation

    Charge/s: Grievous bodily harm (GBH) with intent, aggravated assault occasioning bodily harm (aggravating factor – the appellant was in a family and domestic relationship with the victim).

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in a de facto relationship for 8 years. After they separated, his former partner commenced a new relationship with a work colleague and the appellant reacted poorly. The appellant attended his former partner’s home and pleaded to recommence the relationship. The appellant went with his former partner to their children’s bedroom. In the presence of their children, he demanded to see her phone. He read through her text massages, threatened to kill her and repeatedly kicked her in the shins. He then used his former partner’s phone to lure her new partner to the house. When her new partner arrived, the appellant attacked him by punching him in the face and continued to kick and punch him while he lay on the ground, again in the presence of their child. He dragged her new partner outside. He taunted his former partner and children to look at the injuries that he was inflicting. The appellant forced his former partner to kiss her new partner while he was unresponsive on the ground and used substantial force to do this. He photographed her new partner’s injuries and sent it to her friend. The injuries sustained by his former partner were relatively superficial, but her new partner sustained extremely serious injuries. The appellant had favourable antecedents with no relevant criminal history and was regarded generally as a person of good character. He pleaded guilty and was sentenced to a total effective sentence of 7 years and 6 months’ imprisonment for both offences (six years’ imprisonment for the GBH offence committed against the new partner and 18 months’ imprisonment for the assault offence committed against his former partner).

    Issue/s:

    1. Whether the offence imposed for GBH was manifestly excessive.
    2. Whether the total effective sentence infringed the first limb of the totality principle.

    Decision and Reasoning: The appeal was dismissed.

    1. The attack against his former partner’s new partner was extremely serious and left permanent injuries. There were elements of premeditation and deception. The attack was not provoked and committed in the presence of children. The offending was at the upper end of the scale of criminality for offences of a similar character. See in particular at [34] where Martin CJ (Buss JA and Mazza JA agreeing) noted at [34], ‘The breakdown of personal relationships is an inevitable aspect of contemporary society, and often causes anger, frustration and jealousy. (The appellant) responded to those emotions with particular brutality…The community rightly expects the courts to denounce conduct of this kind in the clearest of terms, and to impose a sentence which reflects the community's abhorrence of serious offences of domestic violence of this character.’
    2. The appellant submitted that the total effective sentence of 7 years and 6 months’ imprisonment did not bear a proper relationship to the criminality involved in the two offences. Martin CJ (Buss JA and Mazza JA agreeing) held that while both offences were related and stemmed from the same motive, they were separate and required distinct punishments. In those circumstances, and also considering the various mitigating and aggravating circumstances, the Court held that the sentence was not disproportionate to the overall criminality involved.
  • Hill v The State of Western Australia [2015] WASCA 17 (22 January 2015) – Western Australia Court of Appeal
    Accident’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Relationship evidence

    Charge/s: Manslaughter.

    Appeal Type: Appeal against conviction.

    Facts: The appellant and the deceased knew each other for 25 years prior to her death. At one stage, the relationship broke down (at which point the deceased obtained a restraining order against the appellant) but it later improved to the extent that the appellant began to live in a bus on land nearby the deceased’s property. Following a series of escalating arguments (involving the appellant doing things such as throwing objects at the deceased and threatening to kill her), a neighbour found the deceased’s body.

    Issue/s: Whether the trial judge’s directions to the jury with respect to the defence of accident (under section 23B of the Criminal Code (WA)) were adequate.

    Decision and Reasoning: The appeal was dismissed. Hall J (with whom McLure P and Mazza JA agreed) held that the trial judge made sufficient reference to the evidence of a medical expert. He adequately explained that the jury must have regard to that evidence in considering the severity of the injuries to determine whether the death was foreseeable for the purposes of the defence of accident. In considering that defence, the jury was also obliged to consider the whole of the evidence including that the appellant knew the deceased was vulnerable and the previous history of violence and threats of violence (see at [62]).

  • Hansen v The State of Western Australia [2014] WASCA 229 (11 December 2014) – Western Australia Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Assault causing bodily harm’ – ‘Exposing children’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charge/s: Assault causing bodily harm, grievous bodily harm.

    Appeal type: Application for an extension of time to appeal and appeal against sentence.

    Facts: One of the victims, Ms Lee, was in a family and domestic relationship with the appellant, an Indigenous man. She had previously been in a relationship with the other victim, Mr Hill, and they had 2 children together. Count 1 related to an occasion where Ms Lee, Mr Hill and their children were out walking. The appellant, who had followed them, struck Mr Hill with a stick out of anger and jealousy. Mr Hill suffered bruising to his elbow, a fracture to the ulna bone, bruising to the back and loin, and a laceration and bleeding in and around the kidney. Count 3 occurred when the appellant and Ms Lee were in Ms Lee’s bedroom and he asked her for sex. She refused and the appellant punched her seven to ten times to her face with a closed fist. Ms Lee underwent surgery to repair a fractured eye socket and sustained ongoing psychological trauma. In sentencing, to accommodate the totality principle, His Honour reduced the individual sentence he would have imposed on each offence by six months. The total effective sentence was 6 years’ imprisonment.

    Issue/s: The total effective sentence infringed the first limb of the totality principle namely, ‘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 to the circumstances of the case, including those referable to the offender personally’ (See [22]).

    Decision and Reasoning: The application for an extension of time within which to appeal was granted but the appeal was dismissed. The total effective sentence of 6 years’ imprisonment properly reflected the appellant’s overall criminality having regard to all the circumstances of the case (See [27]). These offences were serious examples of their type. The offences were ‘brutal, sustained and completely without justification’. The victims were defenceless and the injuries they sustained were significant. In count 1, the appellant used a weapon capable of causing serious harm. In count 3, the appellant beat his domestic partner who was in bed and therefore vulnerable. The sentencing judge was correct to emphasise the need for general deterrence. There was very little that could be said by way of mitigation (See [24]).

  • McCardle v McCardle [2014] WASCA 129 (15 July 2014) – Western Australia Court of Appeal
    Appellant a legal practitioner’ – ‘Application for violence restraining order’ – ‘Delay’ – ‘Family law matters’ – ‘Following harassing, monitoring

    Appeal type: Extension of time within which to commence the appeal, appeal against decision dismissing application for violence restraining order.

    Facts: The appellant originally obtained a restraining order against the respondent in Adelaide in March 2010 which expired in March 2012. The appellant then obtained an ex parte interim violence restraining order (VRO) in Western Australia on 11 July 2012. This was obtained on the basis that the appellant had received telephone calls from the respondent on at least 33 occasions in mid-2012. Prior to final orders being given in relation to the ex parte VRO, the respondent made an application to strike out proceedings on the basis that they were an abuse of process in light of the determination of family law matters in the Federal Magistrates Court. The Magistrate made orders cancelling the July 2012 order in March 2013.

    In June 2013, the appellant appealed to the District Court. The respondent brought an interlocutory application seeking orders to have the appeal struck out. The respondent’s application was allowed. His Honour noted, amongst other things, that the appellant (herself a legal practitioner) had chosen not to seek a fresh restraining order on the basis of any actions since July 2012. There was no suggestion that the respondent had telephoned the appellant since July 2012. It was accepted that the original grounds of the 2012 interim VRO were ‘stale’ and ‘sufficiently minor’ so as to not justify the costs of the appeal.

    Issue/s: Whether the appellant should be given an extension of time within which to commence the appeal against the decision of the District Court?

    Decision and Reasoning: The application for an extension of time within which to appeal was dismissed. In terms of prospects of success, it was arguable that the judge erred by ‘understating the degree of domestic and family violence' evidenced by the 'blocked number' telephone calls, the alleged verbal abuse of the appellant from the respondent in the call she answered, and the failure to take into account incidents which allegedly occurred after July 2012’ (See [34]). However, it was nevertheless not in the interests of justice to grant the extension of time. The Court of Appeal was unable to make orders for the application for a VRO to be heard by a magistrate. Instead the matter would have to be returned to the District Court for a rehearing of that appeal (See [39]-[40]). The length of delay that would result was not minimal. The appellant’s stated reasons for not filing an appeal notice on time were unsatisfactory for a legal practitioner (See [37]). Further, there was no impediment to the appellant seeking a fresh violence restraining order, particularly in relation to any events since July 2012 (See [41]).

  • Baron v Walsh [2014] WASCA 124 (18 June 2014) – Supreme Court of Western Australia (Court of Appeal)
    Act of abuse’ – ‘Evidence’ – ‘Evidence not previously adduced’ – ‘Following, harassing, monitoring’ – ‘Fresh evidence’ – ‘Legally available procedures’ – ‘Systems abuse’ – ‘Violence restraining order

    Appeal Type: Appeal from the District Court which upheld the respondent’s appeal against the imposition of a violence restraining order.

    Facts: The appellant and respondent were in a relationship for six months. The respondent sent offensive text messages which led the appellant to apply for an interim violence restraining order (VRO). This was made a final order. The respondent successfully appealed to the District Court against the imposition of the order. The District Court judge held that the text messages from the respondent to the appellant did not contain any threats, and, more specifically, ‘threats to take, and/or the pursuit of, “legally available procedures” were incapable of constituting acts of abuse’ (under s 11A of the Restraining Orders Act 1997) (see at [46]). The only messages capable of constituting acts of abuse were four offensive text messages, which were not repeated and the appellant apologised for them.

    Issue/s:

    1. Whether the respondent’s use of ‘legally available procedures’ is capable of amounting to an act of abuse within the meaning of s 11A of the Restraining Orders Act 1997.
    2. Whether the District Court judge erred by admitting affidavit evidence that was not adduced or admitted at the final restraining order hearing in the Magistrates’ Court.

    Decision and Reasoning: The appeal was upheld.

    1. The respondent’s use of ‘legally available procedures’ included making complaints to the appellant’s employer’s regulator (she was employed as a nurse) regarding her professionalism, commencing minor claim proceedings, making multiple interlocutory applications in the VRO application and making a perjury complaint to police. McLure P, (with whom Mazza JA and Chaney J agreed), noted that the use of legally available procedures, of itself, will not normally amount to an ‘act of abuse’. However, if legally available procedures are used or threatened with an improper intent or purpose, this could amount to a tort (such as malicious prosecution or abuse of process) or a criminal offence. Her Honour gave the following examples at [63] –

      ‘a threat made with intent to cause or compel a person to settle an action is a criminal offence under s 338A of the Code: Tracey v The Queen [1999] WASCA 77 [11] - [16]. See also The Queen v Jessen [1996] QCA 449; (1996) 89 A Crim R 335. Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort: Williams v Spautz [1992] HCA 34;(1992) 174 CLR 509; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 163 ALR 744. A knowingly frivolous and vexatious claim is also an abuse of process.’ Her Honour went on at [65] – ‘To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures. I do not intend to suggest that this is an exhaustive statement of behaviour that is intimidating.’

      The Court held that the Magistrate was correct in finding that the respondent’s behaviour of using legally available procedures was intimidating and noted that the excuses given by the District Court judge for the respondent’s behaviour ‘underscore the failure to recognise the impropriety of the respondent’s conduct’ (See at [68]). The respondent’s conduct therefore amounted to an ‘act of abuse’.
    2. This ground was also upheld. The relevant evidence concerned the relationship of the parties and what the appellant could have reasonably expected from the break up. Its use led the District Court judge to conclude that the purpose of the Act is not to ‘protect a person from the fallout of a failed relationship’. This was incorrect, the purpose of the Act is, ‘to protect people from acts of abuse in appropriate circumstances whether or not they occur in the fallout of a failed relationship’ (see at [78]). This evidence was used notwithstanding that it was not adduced at the final hearing in the Magistrates’ Court and it was not substantially litigated by the parties at the hearing. The judge was in error in using this evidence.
  • Cramphorn v Bailey [2014] WASCA 60 (21 March 2014) – Western Australia Court of Appeal
    Assault’ – ‘Breach of police order’ – ‘Cross-examination’ – ‘Physical violence and harm’ – ‘Unrepresented litigant’ – ‘Violence restraining order

    Charge/s: Assault, breach of police order.

    Appeal type: Appeal against conviction.

    Facts: The prosecution case was that the appellant and her de facto partner, the complainant, were travelling in a vehicle when the appellant punched the complainant in the mouth. The appellant stopped the vehicle in the middle of the road and a further altercation occurred between them in which the appellant clawed at the complainant’s face. Police issued the appellant with a 24-hour police order which the appellant breached by sending the complainant two abusive text messages. The appellant was convicted after trial in the Magistrates Court of unlawful assault, and breaching a police order. At trial, the appellant was entitled to the protection of a previously imposed violence restraining order issued against the complainant. The appellant appealed to the Supreme Court but the appeal was dismissed. At every stage of proceedings, the appellant represented herself.

    Issue/s: One of the issues was that the trial in the Magistrates Court was unfair to the appellant.

    Decision and Reasoning: The appeal against conviction was dismissed. Although the proceedings before the magistrate were not in respect of the violence restraining order issued against the complainant, the existence of the order was relevant to the proceedings because there was likely to be considerable antipathy between the appellant and the complainant, and there was a risk that the presence might intimidate the unrepresented appellant (See [88]). The trial posed difficulties for the unrepresented appellant, particularly with respect to her having to directly cross-examine the complainant (See [90]). However, having regard to the whole of the trial record, the trial was conducted fairly. The magistrate explained the trial process to the appellant. He controlled the complainant and the appellant, intervening when required during cross-examination and when the complainant interrupted the appellant’s evidence (See [91]). Despite arguing to the contrary, the appellant was permitted by the magistrate to cross-examine the complainant about the history of the domestic violence relationship. She declined to do so (See [92]). Further, the appellant was not entitled to use an intermediary for cross-examination. These provisions are only for the benefit of the person being cross-examined (See [104]-[106]).

  • Beins v The State of Western Australia [No 2] [2014] WASCA 54 (12 March 2014) – Western Australia Court of Appeal
    Aggravated burglary’ – ‘Drug and alcohol programs’ – ‘Parity’ – ‘Physical violence and harm’ – ‘Women

    Charge/s: Aggravated burglary.

    Appeal type: Appeal against sentence.

    Facts: The female appellant had been in an off and on relationship with the male complainant. Prior to this, the appellant had been in a relationship with her co-offender. The appellant and the complainant had been arguing and the argument became violent. The appellant contacted her co-offender and they formed a plan to assault the complainant. They went to the complainant’s premises and the appellant’s co-offender struck the complainant with a pole approximately 15 times. Amongst other findings, the sentencing judge found that the appellant was not the victim of entrenched domestic violence and could not claim any degree of diminished responsibility. Her co-offender had a history of severe domestic violence against him, his brother and their mother. The appellant was sentenced to 2 years and 8 months’ immediate imprisonment. Her co-offender was sentenced to 2 years and 8 months’ imprisonment, suspended for 2 years.

    Issue/s: One of the issues was whether the sentence breached the parity principle.

    Decision and Reasoning: The appeal was allowed. McLure P held that the totality of sentencing considerations could not justify the imposition of different types of sentence. The offenders were broadly comparable in terms of their personal circumstances, involvement with the police, and remorse and rehabilitation. McLure P noted that the sentencing judge cast the appellant as a ‘siren’ who manipulated and knowingly misused her ‘childlike’ co-offender and found that this was not justified by the evidence. The sentencing judge incorrectly concluded that the co-offender’s rehabilitation required the incarceration of the appellant (See [48]). Pullin JA also upheld the appeal but for different reasons. His Honour found that the existence of extraordinary disparity in sentences breached the parity principle (See [82]). Mazza JA also provided his own reasons. Mazza JA noted that the disparity in sentences could not be rationally explained by differences in the circumstances of offending or of the offenders. The offences were not markedly different, their personal circumstances were similar, and both were amenable to programmatic intervention for their therapeutic needs (See [113]-[116]).

  • Rosewood v The State of Western Australia [2014] WASCA 21 (29 January 2014) – Supreme Court of Western Australia (Court of Appeal)
    Deterrence’ – ‘Exposing a child’ – ‘Intoxication’ – ‘Mitigating factors’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in a domestic relationship with the deceased for 12 months prior to the offence and had a 3-month old child. On the day of the offence, the appellant and deceased were drinking alcohol and an argument occurred. The appellant then stabbed the deceased in the chest. The deceased turned away and the appellant stabbed her twice in the back. The appellant witnessed ‘chronic and acute’ (see at [7]) domestic violence in his childhood. He had several prior domestic violence convictions against the deceased and other partners. The appellant was convicted on a plea of guilty. The sentencing judge accepted that the appellant was a high risk of violence in respect of intimate partners and a moderate risk in respect of other people. He was sentenced to life imprisonment with a non-parole period of 18 years.

    Issue/s: Whether the non-parole period was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. McLure P (with whom Newnes JA and Mazza JA agreed) held that this was a serious example of offending of this kind. The deceased was unarmed. While the attack was impulsive and not premediated, this meant that the deceased and other people in the house had limited ability to defend her. The offence was committed in front of the deceased’s family including young children. In relation to intoxication, her Honour noted at [15] – ‘The fact that the appellant was heavily intoxicated at the time is not mitigatory. The sentencing objectives of personal and general deterrence weigh heavily in relation to acts of domestic violence that are committed when drunk or sober.’

  • Tunney v The State of Western Australia [2013] WASCA 286 (17 December 2013) – Supreme Court of Western Australia (Court of Appeal)
    Aggravated assault occasioning bodily harm’ – ‘Aggravated burglary’ – ‘Breach of bail’ – ‘Breach of police order’ – ‘Damaging property’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Trespass’ – ‘Wilfully and unlawful destroying or damaging property

    Charge/s: Aggravated assault occasioning bodily harm, wilfully and unlawfully destroying or damaging property, aggravated burglary, breach of a police order, trespass, breach of bail.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in an ‘on and off’ domestic relationship with the victim for about three years. The aggravated assault charge involved the appellant standing over the victim who was on the floor of their living room. The appellant kicked her in the groin, which caused her to cry out and curl up into the foetal position in agony. The damaging property offence occurred the next day. While driving, the victim noticed the appellant was following her in his truck. He called her and sent her text messages as she drove to a shopping centre. She entered the shopping centre. When she returned to her car she found that two tyres had been deflated.

    Some months later, the victim arrived home to find the appellant inside. He began shouting at her. She fled and the appellant took a bag containing her passport and other belongings. He was issued with a 72-hour police order. He then breached that order the next day by making numerous phone calls to the victim at her work. The trespass charge involved the appellant entering the victim’s home using a set of keys that he had cut without the victim’s knowledge. The aggravated burglary charge occurred when the victim arrived home, again finding the appellant in the house. He attempted to kiss her and refused to leave. At one point, the appellant threw her onto a bed, ripped a necklace from her neck, struck her to the face and hit her on the head with his knees. Later the appellant entered into a bail undertaking in relation to these matters, which he breached by contacting the victim and asked her to look after him because he was sick. He insisted that she take him back to her home, where he remained until he was taken into custody. The total effective sentence imposed was 3 years 8 months’ imprisonment.

    Issue/s: One of the issues concerned whether the sentence infringed the totality principle.

    Decision and Reasoning: The appeal was dismissed. The Court found that notwithstanding the appellant’s ‘favourable’ antecedents, he was not truly remorseful, and considerations of personal and general deterrence remain important. The offending was sustained and designed to intimidate the victim physically and psychologically. He was not deterred from further offending notwithstanding the imposition of police orders and bail conditions. As such, the Court held that the total effective sentence did bear a proper relationship to the overall criminality involved, having regard to all the relevant circumstances. A substantial period of imprisonment was required.

  • Silva v The State of Western Australia [2013] WASCA 278 (4 December 2013) – Supreme Court of Western Australia (Court of Appeal)
    Deterrence’ – ‘Following, harassing, monitoring’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Appeal Type: Appeal against sentence.

    Facts: The appellant’s marriage to the deceased was marred by ongoing arguments. There had been prior minor assaults. The appellant then discovered the deceased was having an affair. The appellant became obsessed about the deceased’s fidelity, was jealous of her friendships with work colleagues and he demanded that she resign from her employment, which she refused. The appellant became aware that the deceased remained friends with the man with whom she had an affair. Before her death, the deceased took leave from work and the appellant monitored her phone calls and prohibited her from returning to work. His unhappiness with the deceased was increased because of her failure to participate in the family’s morning prayer ritual. The appellant then killed the deceased in the living room by hitting her on the right side of a head on at least three occasions with a hammer that he had bought that morning. Mitigating factors included the appellant’s early plea of guilty and good character. He was sentenced to life imprisonment with a 17-year non-parole period.

    Issue/s: Whether the non-parole period was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Buss JA (with whom Mazza JA agreed) found that the seriousness of the offence was demonstrated by (among other things), the brutality and repetitive nature of the attack, the appellant’s intent to kill the deceased, the fact the appellant confronted the deceased when she was alone and vulnerable and the history of domestic violence inflicted by the appellant on the deceased (see further at [40]). The Court upheld the following statement by the sentencing judge in relation to general deterrence

    ‘The law is clear that disputes between partners, no matter how emotionally hurtful, must be resolved peacefully. People must understand that marriage is not a licence to treat a spouse as a chattel and violence in the course of a marriage breakdown will be met with deterrent sentences. It is obvious that the minimum term must recognise the high value that the Western Australian community places on a person's life and a person's right to live without violence from their partner. Domestic violence continues to be a significant cause of violent death and serious injury in our community. The courts must impose sentences which continue to reflect the community's abhorrence and intolerance of such offending, particularly where it results in the death of the victim’ (see at [42]).

  • The State of Western Australia v Naumoski [2013] WASCA 215 (18 September 2013) – Supreme Court of Western Australia (Court of Appeal)
    Aggravating factor’ – ‘Deterrence’ – ‘Grievous bodily harm with intent’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Grievous bodily harm with intent.

    Appeal Type: Appeal against sentence.

    Facts: The respondent and the victim were married and had a young daughter. Their relationship ended. When the respondent returned to the victim’s unit to retrieve his property, the victim called police due to his behaviour. He left before police arrived. He then returned to the unit. The victim again called police who issued the respondent with a 24-hour move-on notice. The following evening, the respondent entered the unit using his own key, confronted the victim, struck her on the top of her head, placed his hands around her neck then stabbed her multiple times. The victim managed to exit the unit while the respondent chased after her and continued to stab her in the back. The victim almost died and suffered extremely serious injuries and is disfigured for life. She lost the use of one hand and use of her thumb on the other hand and could no longer look after her daughter on her own. The mental effects were also severe – she became depressed, highly dependent on others, unemployed and ‘cannot stand the sight of herself’ (see at [11]). The appellant had a previous conviction for violence and the sentencing judge noted that he was intoxicated at the time of the offence and had a propensity for violence whilst intoxicated. He was sentenced to 5 years’ imprisonment and was made eligible for parole.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld. McLure P (with whom Buss JA and Mazza JA agreed) noted that the offending was premediated, with the respondent having waited more than an hour for the victim to return home. He acted ‘out of hate related to his wife’s attempt to take control of her own life’ (see at [21]). See in particular at [25]-[41] where McLure P provided summaries of all comparable cases. Her Honour described this offending as ‘high on the scale of seriousness just short of the worst category’, noting its premeditated nature, ferocity, the nature and extent of the harm and the tragic effect on the victim. A further aggravating factor was that the respondent intended not only to do her grievous bodily harm but to disfigure her body. This made the sentence manifestly inadequate notwithstanding the mitigating factors and the respondent was resentenced to 7 years’ imprisonment with no change of parole eligibility.

    Her Honour discussed the prevalence of domestic violence and the fact that is often connected with conduct in a relationship that, ‘understandably generates high emotion, volatility and associated loss of control.’ Notwithstanding, the fact that violence occurs in a domestic relationship is not a mitigating factor (see at [43]). As to whether it would be an aggravating factor, her Honour stated at [41]– ‘I am not persuaded that the sentencing subtleties are appropriately conveyed by characterising the domestic relationship (whether past, existing or anticipated) setting as itself aggravating the offending’ and at [43], ‘Deterrence is called for in relation to all offences involving serious violence, domestic and otherwise.’

  • Abfahr v The State of Western Australia [2013] WASCA 87 (5 April 2013) – Supreme Court of Western Australia (Court of Appeal)
    Deterrence’ – ‘Failing to report car accident’ – ‘Failing to stop after car accident’ – ‘Grievous bodily harm with intent’ – ‘Orders affecting children’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Suspended sentence

    Charge/s: Grievous bodily harm with intent, failing to stop after a car accident, failing to report a car accident to police.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The appellant had been in a relationship with the victim for 16 years. They had two children. Both parties claimed to have been the subject of threats and violence by the other. The appellant was served with an interim violence restraining order. He received a call from his children who said that their mother was not home and requested food. While claiming to be driving to a supermarket to purchase food for his children, he saw the victim at a bus stop. Once the victim had alighted from the bus, the appellant drove onto the footpath and struck her with the middle of the bonnet. She was thrown into the air and landed on the pavement, causing serious injuries. He continued without stopping – he claimed he saw her attempt to get up and assumed she was okay. A psychologist’s report indicated that the appellant showed no empathy or remorse, and that rehabilitation would be difficult. Another psychologist’s report indicated that the victim had significant mental health issues and serious difficulties in providing adequate care for her children. A total effective sentence of 5 years’ imprisonment was imposed.

    Issue/s:

    1. Whether the trial judge erred in failing to suspend the term of imprisonment.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that in not suspending the term of imprisonment, the trial judge erroneously concluded that the inability of the victim to care for her children was due to the appellant’s conduct. This argument was rejected. The trial judge’s conclusions were that the victim was unable to care for her children due to her mental illness and that the appellant also contributed to her incapacity because of his having caused her grievous bodily harm.
    2. In noting the ‘egregious’ nature of the offending, Buss JA (with whom McLure P and Mazza JA agreed) held that the sentence was appropriate. Punishment and deterrence (both personal and general) were the relevant considerations, in the absence of any significant mitigating factors and the appellant’s lack of remorse and prospects of rehabilitation. While the sentence will cause the children to suffer ‘hardship and distress’ (see at [80]), his Honour was not persuaded that this amounted to an ‘extreme or exceptional case’ or that the hardship would be severe enough to warrant a lesser sentence.
  • McLaughlin v The State of Western Australia [2012] WASCA 204 (12 October 2012) – Supreme Court of Western Australia (Court of Appeal)
    Arson’ – ‘Assault occasioning bodily harm’ – ‘Damaging property’ – ‘Physical violence and harm’ – ‘Possess weapon’ – ‘Sentencing’ – ‘Threat to kill’ – ‘Totality

    Charge/s: Assault occasioning bodily harm, making a threat to kill (two counts), arson, possessing a weapon.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: After consuming alcohol, an argument between the appellant and his current partner ensued. He threw an ashtray which hit her in the back. He used a knife to cut the cord to a vacuum cleaner that she was using. Later, he spat on, grabbed and shook her. He then used the knife to smash a coffee table and stab walls while threatening to kill her, her son and others. He prevented her from leaving the lounge room. She was fearful of him and remained awake all night. After being arrested and released on bail for these offences (assault and threat to kill), the appellant broke into the home of his estranged wife, ignited a lounge chair and again made threats to kill by leaving voice messages on her mobile phone. The appellant had a history of violent offending against his partner and his estranged wife. A psychologist described him as having ‘deep seated rejection fears’ attributable to his traumatic childhood. The total effective sentence imposed was four years eight months’ imprisonment.

    Issue/s: Whether the total effective sentence infringed the first limb of the totality principle.

    Decision and Reasoning: Leave to appeal was refused. The Court noted the extremely serious nature of arson and the fact that the maximum penalty is life imprisonment. Buss JA (Mazza JA agreeing) provided a summary of sentencing patterns for arson at [48]-[58]. The fire had a potential to destroy the house. His Honour also noted the threats to kill against his partner, ‘occurred in the context of a persistent course of conduct designed to denigrate and humiliate (her) and cause her intense fear and anxiety’ (See at [68]). As such, the sentence was not disproportionate.

  • Wongawol v The State of Western Australia [2011] WASCA 222 (17 October 2011) – Supreme Court of Western Australia (Court of Appeal)
    Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘Deterrence’ – ‘Intention’ – ‘Murder’ – ‘People affected by substance abuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Traditional Aboriginal and Torres Strait Islander punishment

    Charge/s: Murder

    Appeal Type: Appeal against sentence.

    Facts: On the day of the offence, the appellant (an Aboriginal man) was intoxicated and had been smoking cannabis. He returned home and an argument ensued relating to his partner’s confession that she had been ‘sexually misbehaving’ (see at [4]). The appellant became angry and attacked her with a knife. The blows were struck mainly in the region of her legs. The sentencing judge held that the fact he mainly stabbed her in the legs, as opposed to, (for example) in the chest was not particularly relevant to establishing the requisite intention – the appellant struck a considerable number of blows randomly with the intention of causing serious harm. The appellant was sentenced to life imprisonment with a non-parole period of 14 years.

    Issue/s:

    1. Whether the sentencing judge failed to recognise the significance of the stabbing being in the legs when making conclusions with respect to the intention with which the blows were inflicted.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that he was a traditional full-blood tribal Aboriginal man and was familiar with the concept of spearing or stabbing in the legs as punishment. The sentencing judge found that the appellant intended to hurt the deceased severely by punishing her for sexual misbehaviour. In the past, the appellant had self-harmed by stabbing himself and the deceased in the thigh. The appellant submitted that this was relevant to the sentencing judge’s conclusion with respect to intention. This argument was rejected – McLure P (with whom Buss JA and Mazza J agreed) held that the number and distribution of the wounds ‘reflect the frenzied nature of the appellant's attack on the deceased and more than adequately support the sentencing judge's finding’ (see at [30]).
    2. The appellant had a long history of violent offending. He was described as being ‘aimless’ and as having a problem of habitual intoxication and use of cannabis. The appellant submitted that the sentencing judge placed too much weight on these ‘lifestyle issues’ and grossly dysfunctional background. This argument was rejected – a psychologist’s report confirms that the appellant uses violence in order to solve conflict. Further, his substance abuse contributed to his offending and he had limited insight into his problems. His prospects of rehabilitation were poor. As McLure P noted at [39] –

    ‘This is a case where the protection of the community in which the appellant lives and both personal and general deterrence are very weighty sentencing considerations. The incidence of alcohol and drug fuelled violence within Aboriginal communities is distressingly high. A new generation of children are scarred. The cycle continues. Having regard to all relevant sentencing factors, there is no merit in the claim that the minimum period of 14 years is manifestly excessive.’

  • Evans v The State of Western Australia [2011] WASCA 182 (5 September 2011) – Western Australia Court of Appeal
    Alcohol’ – ‘Insanity’ – ‘Murder’ – ‘mental illness’ – ‘Physical violence and harm’ – ‘Provocation

    Charge/s: Murder.

    Appeal type: Appeal against conviction.

    Facts: During an altercation, the male appellant slashed his fiancee's arm with a knife (the first injury). Realising the seriousness of the injury, the appellant dropped the knife and applied a tourniquet to her arm. The deceased further goaded the appellant to kill her. The appellant slashed her twice in the neck, causing her death (the second and third injuries). The deceased was a person who frequently consumed excessive amounts of alcohol. During the months prior to the death, the relationship between the appellant and the deceased was characterised by frequent incidents of domestic violence, with the appellant usually being the victim. A few hours after the killing, the appellant was taken into custody and admitted to killing the deceased in a recorded interview. In the 8 years prior to the killing and thereafter, the appellant was admitted to psychiatric hospitals. It was accepted that he suffered psychotic episodes from time to time.

    Issue/s:

    1. The trial judge made material errors of law in his direction to the jury on the provocation defence resulting in a substantial miscarriage of justice.
    2. The verdict of the jury was unsafe or unsatisfactory on the ground that the jury should have found the appellant insane at the time of the killing.

    Decision and Reasoning: The appeal was upheld on ground 1 and a retrial was ordered. The State conceded that the trial judge made an error of law in his direction to the jury on provocation but argued that the error did not result in a substantial miscarriage of justice because the evidence was incapable of supporting the defence of provocation. McLure P (with whom Mazza J agreed) found that the evidence was capable of giving rise to a reasonable doubt as to whether the appellant was provoked to cause all three injuries. There was a resulting miscarriage of justice (See [142]-[143]). Pullin JA in dissent found that while the trial judge erred in directing the jury as to provocation (See [231]), there was no miscarriage of justice as provocation should not have been left as an issue to be decided by the jury. The appellant was no longer deprived of self-control when he caused the third injury (See [238]-[239]).

    Ground 2 was dismissed. McLure P (with whom Mazza J agreed) held that it was reasonably open to the jury to fail to be persuaded on the balance of probabilities that the appellant was deprived of the capacity to know he ought not to kill the deceased. There was evidence in the police interview that the appellant was thinking rationally before and after the deceased’s death (See [125]-[126]). Pullin JA, in a separate judgment, also held that while there was unanimous evidence from psychiatrists that the appellant suffered from a mental illness and that suffered from psychotic episodes, whether he was psychotic on the night of the killing and whether he lacked the capacity to know the act of slashing in the neck was wrong was a matter of controversy. Pullin JA was unable to conclude, on the balance of probabilities, that the appellant lacked the relevant capacity (See [219]-[220]). See also Evans v The State of Western Australia [2010] WASCA 34 (26 February 2010) and The State of Western Australia v Evans [No 2] [2012] WASC 366 (9 October 2012).

  • O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) – Supreme Court of Western Australia (Court of Appeal)
    Evidence’ – ‘Hearsay’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’ – ‘Remoteness of evidence

    Charge/s: Murder

    Appeal Type: Application for extension of time for leave to appeal against conviction.

    Facts: The appellant was convicted of the murder of his de facto partner.

    Issue/s: One of the issues concerned whether the trial judge erred by admitting evidence of the relationship between the appellant and the deceased, particularly statements made by the deceased as to the nature of the relationship and previous violence she suffered at the hands of the appellant.

    Decision and Reasoning: The appeal was dismissed. The prosecution relied on common law principles in relation to admissibility of the evidence. Martin CJ (with whom Pullin JA and Hall J agreed) at [25] – [41] considered various High Court decisions on the correct test to apply including Wilson v The Queen (1970) 123 CLR 334 and Walton v The Queen (1989) 166 CLR 283. The Court held firstly that the evidence was not hearsay, because it was only used to establish the deceased’s state of mind. The jury could then draw an inference as to the nature of the relationship. The crucial issue was the way the evidence was used. If the jury had regarded the evidence as facts asserted by the deceased and then went onto conclude that the appellant was prone to violence, it would have been prejudicial to the accused. However, the prosecution did not use the evidence in this way and the trial judge directed accordingly. An argument that statements made by the deceased earlier than one or two weeks prior to her death was ‘too remote in point of time’ to be admissible was also rejected. The Court held that while it may be possible for evidence to be so distant as to be inadmissible, this was not the case here. The relationship was relatively short and the statements that were made completely spanned this period. This increased rather than reduced its probative value.

  • MJS v The State of Western Australia [2011] WASCA 112 (9 May 2011) – Supreme Court of Western Australia (Court of Appeal)
    Directions and warnings for/to jury’ – ‘Evidence’ – ‘Evidence of character’ – ‘Indecent assault in family or domestic relationship’ – ‘Indecent dealing with lineal relative under 16 years’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Sexual penetration of a lineal relative under 16 years’ – ‘Violence restraining order

    Charge/s: 18 charges of a sexual nature relating to the appellant’s two biological daughters.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The appellant was charged with various sexual acts relating to his two daughters (see at [22]). He was convicted by a jury of 11 offences of indecent dealing, 4 offences of indecent assault and acquitted of three charges. There was previously an interim violence restraining order (VRO) in place against the appellant. The appellant later breached this order. Evidence of this breach and his subsequent imprisonment for a weekend was inadvertently admitted at trial after one of the complainants mentioned it during cross-examination.

    Issue/s: Some of the issues in the appeal against conviction concerned –

    1. Whether the trial judge should have discharged the jury after one of the complainants gave evidence during cross-examination of a prior breach of a VRO in place against the appellant.
    2. Whether the directions of the trial judge in respect of this evidence were sufficient.

    Decision and Reasoning: The appeal against sentence was upheld but the appeal against conviction was dismissed.

    1. The appellant submitted that the admission of the interim VRO evidence was inadmissible and so prejudicial it required the trial judge to discharge the jury. The appellant also submitted that this failure to discharge the jury led to further inadmissible evidence concerning other VROs and alleged breaches which compounded the initial prejudice. Mazza J (with whom Buss JA and McLure P agreed) held that the only basis upon which this evidence could be admissible was with respect to the appellant’s character. Generally, evidence of bad character is inadmissible but can be admissible where an accused puts their character in issue, in which case the prosecution is able to call evidence of bad character in rebuttal (see at [144]). In this case, the accused asserted that he was of good character. As such, the prosecution was entitled to adduce rebuttal evidence. The evidence of the VROs could only be admissible for that purpose.

      The Court held that in isolation, the making of an interim VRO was not of relevance to an accused’s character. However, the evidence also included the alleged breach of the VRO. Mazza J held that a breach of a VRO ‘amounts to deliberate disobedience of a court order’ and ‘is conduct which is prima facie inconsistent with the usual behaviour of a person of good character. It is evidence capable of rebutting an assertion of good character’ (see at [153]). As such, it was admissible. However, the evidence that he had spent a weekend in jail was not relevant to character and thus inadmissible, but capable of being dealt with by judicial direction. Furthermore, even if the VRO evidence was inadmissible, it was general in nature – ‘There was no detail as to when the VRO was made, who was the protected person, what was the basis for the order and what the appellant did to breach it’ (see at [157]). As such, any potential prejudice could be dealt with by judicial direction.
    2. The Court held that while the trial judge’s directions in relation to this evidence could have been ‘fuller’, they were sufficient. It would have been desirable for him to ‘use the authority of his office to confirm that a court had not determined on its merits whether a final VRO should be made’. However, the judge explained to the jury the ex parte nature of an interim order. While the judge did not explicitly tell the jury that it could only take the breaches into account for the purposes of character, he did tell the jury that the State’s case was that these breaches were relevant to character and that the ex parte VROs and the time spent in jail were irrelevant. This was sufficient for a reasonable jury to understand that the evidence was only relevant in relation to the appellant’s character.
  • The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) – Supreme Court of Western Australia (Court of Appeal)
    Aggravating factor’ – ‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Deterrence’ – ‘Fines’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Reconciliation’ – ‘Sentencing’ – ‘Threat to kill

    Charge/s: Deprivation of liberty (two counts), assault occasioning bodily harm, threatening unlawfully to kill.

    Appeal Type: Appeal against sentence.

    Facts: The first victim (K) was the respondent’s former partner, with whom he had a 2-year old child. The second female victim (C) commenced an intimate relationship with K. The respondent believed that the relationship between K and C had begun before he had separated with K. After the separation, the respondent asked K and C to meet at his home to discuss their relationship with each other. The respondent then left with K, at which point an argument developed. The respondent refused to permit K to leave his car and detained her while he drove her back home. He prevented her from escaping the house. He then armed himself with a spear gun and loaded it with a barbed spear. C then returned to the respondent’s home, whereupon the respondent pointed the spear gun at her, forced her to enter the house and prevented her from leaving. C refused to give the respondent her car keys. In response, the respondent punched C hard in the left cheek which knocked her down. He then picked her up by the throat and lifted her from the ground. He made a number of threats to kill C. C was left with severe injuries and the mental effect has been ‘profound’. She was in fear of her life (see at [47]-[53]). He later reconciled with K. There was no evidence of domestic violence by the respondent towards K before he became suspicious about her relationship with C. He was sentenced to 12 months’ imprisonment (conditionally suspended for 18 months) for both counts of deprivation of liberty, fined $1000 for assault occasioning bodily harm and sentenced to 24 months’ imprisonment (conditionally suspended for 18 months) for threatening to kill. These terms (as well as a fine for unrelated offending) were imposed concurrently which resulted in a total effective sentence of 2 years’ imprisonment, conditionally suspended for 18 months and a $2000 fine.

    Issue/s: Some of the issues concerned –

    1. Whether the fine imposed for assault occasioning bodily harm was manifestly inadequate.
    2. Whether the sentencing judge erred in suspending the terms of imprisonment by not having sufficient regard to the seriousness of the conduct and the impact on the victims
    3. Whether ordering the sentences be suspended resulted in a sentence that was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld in respect of issues 1 and 3.

    1. Buss JA (Mazza J agreeing) noted that the assault against C was serious, unprovoked, committed against an unarmed victim who offered no resistance and part of a prolonged episode of intimidation. The fact that the respondent was armed with a spear gun was likely to have increased the victim’s fear. The context of the assault (the breakdown of the domestic relationship between the respondent and K and the new relationship between K and C) made personal and general deterrence relevant. This made a $1000 fine manifestly inadequate notwithstanding the respondent’s personal circumstances, including that he was suffering from a mental illness. McLure P agreed and noted that a fine cannot be justified on totality grounds and ‘falls well short of appropriately recognising the degree, effect and context of the physical violence inflicted by the respondent on C’ (see at [1]).
    2. Buss JA (Mazza JA agreeing) held that the remarks of the sentencing judge did sufficiently refer to the seriousness of the conduct and the impact on the victims, as he noted that the issue of suspension required him to consider all aggravating and mitigating factors as well as the objective features of the offence (see at [89]).
    3. Buss JA (Mazza JA agreeing) noted that the deprivation of liberty and threat to kill offences were objectively very serious. His Honour disagreed with the sentencing judge and noted that a matrimonial breakdown, reconciliation and the presence of a child in the relationship cannot be regarded as mitigating factors. However, the fact that the respondent’s mental state has improved following therapy could indicate progress towards rehabilitation. Nevertheless, the seriousness of the offending and the associated need for deterrence outweighed other factors such as rehabilitation and mercy. McLure P noted that C suffered greater actual and threatened violence than K, such that it was difficult to understand the sentencing judge’s explanation for suspending the deprivation of liberty and threat to kill sentences.

      See also her Honour’s remarks at [3] – ‘The circumstances to which the sentencing judge referred are neither unique nor mitigatory. The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence. The otherwise appropriate penalty should not be reduced because there is a return to the status quo that existed prior to the breakdown of the relationship which precipitated the violence. It is also circular to rely on the return to the relationship status quo as the route to rehabilitation. Moreover, the emphasis on the domestic context marginalises the actual and threatened violence inflicted by the respondent on C.’

      As such, these offences warranted immediate imprisonment. A total effective sentence of 18 months’ immediate imprisonment was imposed.

  • Papas v The State of Western Australia [2011] WASCA 3 (10 January 2011) – Supreme Court of Western Australia (Court of Appeal)
    Aggravated burglary’ – ‘Assault occasioning bodily harm’ – ‘Breach of protective bail conditions’ – ‘Criminal damage’ – ‘Damaging property’ – ‘Deterrence’ – ‘Exposing a child’ – ‘Mitigating factors’ – ‘Obstructing a public officer’ – ‘People affected by substance abuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Separation

    Charge/s: Aggravated burglary (two counts), assault occasioning bodily harm, criminal damage, obstructing a public officer, breaching protective bail.

    Appeal Type: Appeal against sentence.

    Facts: The complainant was the father of the appellant’s former partner. The appellant attended the complainant’s house and obtained entry. He was confronted by the complainant who demanded he leave. A verbal altercation occurred, at which point the appellant’s former partner came to the aid of the complainant. The appellant then grabbed her by the hand and bent her middle finger which caused it to fracture. One another day, the appellant again obtained entry to the house, this time by throwing a pot plant through a door. His former partner was inside and she barricaded herself and her 2-year-old son in a bedroom with a chest of drawers. The appellant rammed the door with a table which enabled him to unlock the door. She managed to flee the bedroom and the appellant was detained by a neighbour until police arrived. The appellant suffered from depression and anxiety and was intoxicated on both occasions. He had no relevant criminal history. A total effective sentence of 12 months’ imprisonment was imposed.

    Issue/s:

    1. Whether the trial judge erred in failing to find that the appellant’s depression and anxiety reduced his moral culpability and the need for general deterrence.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. McLure P (with whom Mazza J agreed) held that the appellant’s mental impairment did not impair his functioning to the extent that his culpability or the need for general deterrence should be reduced. Instead, the offending can be attributed to his level of intoxication.
    2. The Court held that the seriousness of this offending was heightened by the extent of the actual and threatened violence committed by the appellant, and as McLure P (Mazza J agreeing) noted – ‘The seriousness of the offending is not reduced because it occurred in the context of a failed or failing domestic relationship. It is necessary to protect actual and potential victims of domestic violence’ (see at [16]). The mitigating factors, such as the appellant’s remorse and good character were given sufficient weight by the sentencing judge.
  • Austic v The State of Western Australia [2010] WASCA 110 (11 June 2010) – Supreme Court of Western Australia (Court of Appeal)
    Circumstantial evidence’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Offender character references’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The appellant was convicted for the murder of the deceased; with whom he had been in a casual sexual relationship for 12 months. The deceased was 22 weeks pregnant with the appellant’s child at the time of her death. The appellant was intoxicated, attended the deceased’s home and stabbed her 21 times in her bedroom. He then walked back to his home, threw away the knife and left the deceased. He destroyed evidence that could implicate him in the murder. The prosecution’s case relied purely on circumstantial evidence. He was sentenced to life imprisonment with a non-parole period of 25 years.

    Issue/s: Some of the issues concerned –

    1. Whether the trial judge erred by not directing the jury that they had to be satisfied beyond reasonable doubt of certain facts because these facts were indispensable links in the chain of reasoning towards a finding of guilt.
    2. Whether the non-parole period was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. The Court held that there was a very strong circumstantial case against the appellant and the trial judge’s directions were sufficient for the jury to understand that they had to be satisfied beyond reasonable doubt that the appellant had the opportunity to and in fact did kill the deceased.
    2. The appellant submitted that the 25-year non-parole period was excessive given various comparable cases, the objective seriousness of the crime and the appellant’s personal circumstances. He also submitted that the fact that the crime did not involve multiple victims or multiple offences and the lack of any lengthy premeditation was significant. The appellant had no relevant criminal history. He was previously in a de facto relationship which did not involve violence, had two daughters and had numerous references attesting to his good character. The appellant’s increasing alcohol consumption had been a factor in the breakdown of the relationship. He had been suffering from depression for which he was receiving psychological treatment. However, the Court found the non-parole period was not manifestly excessive. A significant aggravating factor was the deliberate killing of the unborn child. While a psychologist’s report indicated that the appellant was a low risk of re-offending, he refused to admit guilt or show remorse. Further, the crime was committed ‘in a calculated and savage manner and for a shallow and appalling motive’ (see at [186]) such that little weight could be afforded to the appellant’s antecedents.
  • Heijne v The State of Western Australia [2010] WASCA 86 (11 May 2010) – Western Australia Court of Appeal
    Intention’ – ‘Motive’ – ‘Murder’ – ‘People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘Physical violence and harm’ – ‘Self-defence

    Charge/s: Murder.

    Appeal type: Appeal against conviction.

    Facts: The male appellant and the male deceased had been in an intimate personal relationship for nearly 25 years. The prosecution case was that this relationship deteriorated particularly because of the development of a relationship between the appellant and a younger man (Mr X). The prosecution argued that the appellant strangled the deceased. The defence case was that the evidence did not exclude that the deceased died of a heart attack not strangulation. The defence further asserted that the State failed to prove the appellant had a motive to kill or intention to kill the deceased. The defence also relied on self-defence against an unprovoked assault. The appellant asserted that the deceased struck his face with the back of his right hand before the strangulation occurred.

    Issue/s:

    1. Whether there was material on which the jury acting reasonably could fail to be satisfied that the prosecution had excluded the application of self-defence against unprovoked assault.
    2. There was insufficient evidence to enable the jury to be satisfied beyond reasonable doubt that the appellant intended to cause some form of injury, of whatever kind, falling within the definition of grievous bodily harm.
    3. The trial judge erred in directing the jury as to causation.
    4. The trial judge gave inadequate directions with respect to the intent necessary to sustain a charge of murder.

    Decision and Reasoning: The appeal was dismissed. First, there was no basis in the evidence for the jury to have entertained the possibility that the appellant reasonably apprehended that he faced death or grievous bodily harm. Assaults committed by the deceased on the appellant in the past were not of a kind to cause apprehension of death or grievous bodily harm, and the deceased striking the appellant with the back of his hand would similarly not be of a kind to cause such fear (See [44]-[49]). Further, the jury could not have entertained the possibility that the only practical means of averting the threat was through application of force to the deceased’s throat. Other options open to the appellant included brushing the deceased off or punching him in the head (See [50]).

    Second, there was ample evidence sustaining the inference that the appellant intended to cause some form of injury within the definition of grievous bodily harm. This included the pathological evidence given in relation to the extent of the deceased’s injuries, the evidence of animosity in the relationship, the appellant’s description of the struggle preceding the killing, the appellant’s evidence that when he realised the deceased was dead he thought he must have strangled him, the appellant’s conduct before and after the killing, the appellant’s admissions to Mr X and another man, and a witness’s evidence of lies told by the appellant (See [71]).

    Third, the trial judge did not err in his approach to the issue of causation in his direction to the jury. He reminded the jury of the most pertinent evidence on the subject and clearly identified the issue they had to resolve and the manner in which they should resolve it (See [81]-[85]).

    Finally, the trial judge specifically referred the jury to all the evidence that was relevant to the intent of the appellant at the time of the death. The evidence was relevant to both the question of intent required to sustain the charge of wilful murder, and the intent required to sustain the charge of murder. The difference between those two intentions was made abundantly clear to the jury (See [106]-[107]).

  • Atherden v The State of Western Australia [2010] WASCA 33 (26 February 2010) – Supreme Court of Western Australia (Court of Appeal)
    Aggravating factor’ – ‘Effect of guilty plea’ – ‘Intention’ – ‘Murder’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Violence restraining order’ – ‘Vulnerable - women

    Charge/s: Murder.

    Appeal Type: Appeal against sentence.

    Facts: The appellant had been in a relationship with the deceased for some three and a half years before the relationship ended. The deceased obtained a violence restraining order against the appellant which prohibited him from coming within 100m of her home or work and within 20m of her person. The appellant went to the deceased’s house for the purpose of discussing the restraining order – he wanted to ask the deceased to remove the restraining order because it would be difficult to renew his licence as a car dealer with the restraining order in place. When she yelled at him to get off the property, he hit her with a rubber mallet multiple times until she lost consciousness. He then hit her with a brick. She sustained severe head injuries and she later died. The appellant did not seek medical attention for the deceased. He was sentenced to life imprisonment with a minimum non-parole period of 16 years. The appellant had some history of domestic violence – an ex-partner had obtained a violence restraining order against him after he stalked her and punched her several times.

    Issue/s:

    1. Whether the original sentence was within range of comparable sentences and whether the trial judge gave sufficient weight to the prosecution’s concession that the appellant only intended to cause grievous bodily harm, not death.
    2. Whether the trial judge failed to give sufficient weight to the early plea of guilty in combination with the long non-parole period.

    Decision and Reasoning: The appeal was upheld in respect of ground 2.

    1. This argument was dismissed. Wheeler JA (with whom Owen JA and McLure P agreed) firstly accepted that given the value which the community places on human life, it is likely that (generally) killing with intention to cause death will be more seriously regarded than killing with the intention to cause grievous bodily harm. However, this will not always be the case, and intention is only one of a range of relevant factors in determining an appropriate sentence (see at [30]-[31]). Indeed, there were other aggravating factors which were relevant in this case. These included – ‘the brutality of the attack on a defenceless woman, the fact that two weapons were used, the stalking behaviour which occurred in the months leading up to the attack, the presence of the violence restraining order, and the appellant's callous disregard for the victim's obvious need for medical attention’ (see at [48]).
    2. The trial judge did not state that the guilty plea was a mitigating factor for which some reduction in sentence should be made. Furthermore, both parties accepted that that a non-parole period of 16 years was severe for an offence involving no premeditation and a relatively brief (albeit violent) attack. Wheeler JA stated that where an early plea can be regarded as a mitigating factor, sentencing judges should expressly state in open court that a reduction in sentence has been made for that reason (see at [45]). The non-parole period was reduced to 14 years.
  • Evans v The State of Western Australia [2010] WASCA 34 (26 February 2010) – Western Australia Court of Appeal
    Accident’ – ‘Alcohol’ – ‘Hearsay evidence’ – ‘Insanity’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    Appeal type: Appeal against conviction.

    Facts: The male appellant and the deceased woman had been in a seven-month relationship. The police had been involved on at least five occasions including an incident in which the appellant broke the deceased’s hand. The deceased, an alcoholic, was not inclined to cooperate with police and declined to provide a statement on these occasions. The appellant convinced police that he was the victim of the deceased’s aggression. On 13 November 2007, the appellant caused the deceased knife wounds to her right arm, her neck, and her chest near her armpit. After cutting her neck, the appellant pressed on the deceased’s chest, accelerating her blood loss and her death. During an interview with police, the appellant admitted that he killed the deceased. The appellant had a history of mental health problems from August 1999. At trial, evidence was adduced from Ms Maton about conversations she had with the deceased regarding acts of violence perpetrated upon her by the appellant. The two broad issues at trial were whether the State negated the defence of accident and whether the appellant had established the defence of insanity.

    Issue/s: Some of the issues included that –

    1. The trial judge erred in her directions on accident.
    2. The trial judge erred in her directions on insanity.
    3. The trial judge erred in directing the jury as to the use that could be made of out-of-court statements made by the deceased.

    Decision and Reasoning: The appeal was allowed. Wheeler JA (with whom Owen JA agreed) found it unnecessary to deal with ground 1. The respondent accepted that the trial judge erred in her classification of the infliction of the fatal wound as an ‘event’ for the purposes of applying the defence of accident. The appeal would have to be allowed unless there was no substantial miscarriage of justice. Wheeler JA found it unnecessary to undertake such analysis because the appeal was allowed on other grounds (See [46]). On ground 1, McLure P found there had been a substantial miscarriage of justice (See [15]-[17]).

    Wheeler JA (with whom Owen JA agreed) allowed the appeal on ground 2. The trial judge failed to adequately direct the jury that the appellant could be found not guilty by reason of insanity, even if the appellant knew what he was doing was contrary to law (See [57]-[58]). Further, the trial judge failed to direct the jury that, when considering whether the appellant was deprived of the capacity to know he ought not to do the act, the issue was whether the appellant was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing (See [61]-[62]). McLure P held that the trial judge failed to direct the jury that a person can lack the relevant capacity even if they know the act is unlawful (See [24]-[27]).

    The appeal was also allowed on ground 4. Wheeler JA (with whom McLure P and Owen JA agreed) noted that the evidence of Ms Maton was provided in graphic and striking detail, and had the potential to be significantly prejudicial to the appellant. Not only was the evidence admitted but the trial judge invited the jury to treat the account given by Ms Maton as evidence of the truth of the matters recounted to her. This direction was plainly erroneous (See [72]-[74]). A retrial was ordered. See Evans v The State of Western Australia [2011] WASCA 182 and The State of Western Australia v Evans [No 2] [2012] WASC 366 (9 October 2012).

  • Sakkers v Thornton [2009] WASC 175 (22 June 2009) – Supreme Court of Western Australia
    Aggravated stalking’ – ‘Breach of restraining order’ – ‘Concurrency’ – ‘Deterrence’ – ‘Double jeopardy and other charges’ – ‘Double punishment’ – ‘Following, harassing, monitoring’ – ‘Possession of firearm’ – ‘Suspended sentence’ – ‘Totality

    Charge/s: Aggravated stalking (circumstance of aggravation – that the offence was committed in breach of a violence restraining order), breach of violence restraining order (12 counts), possession of firearm with circumstances of aggravation.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in a relationship with the complainant for three years which ended. The appellant then continually sent emails and text messages to the complainant (including at her workplace) and made threats to kill her. The complainant obtained a violence restraining order (VRO) which prevented the appellant from communicating with her by any means. His conduct then continued in breach of the order. He was arrested and Police found a firearm and ammunition at his home. The appellant was sentenced to 12 months’ imprisonment for the stalking charge, a global sentence of 12 months’ imprisonment for the breach offences (cumulative on the sentence for stalking) and 7 months and 2 weeks’ imprisonment for the possession of firearm offence.

    Issue/s: Some of the issues concerned -

    1. Concurrency: Whether the sentence imposed for the breach offences should have been made concurrent with the sentence for the stalking offence because both offences involved the same acts.
    2. Totality: Whether the Magistrate failed to have proper regard to the totality principle.
    3. Whether the sentences were manifestly excessive.
    4. Whether the sentence should have been suspended.

    Decision and Reasoning: The appeal was upheld in respect of issue 1.

    1. The prosecution conceded that the appeal on the issue of concurrency must succeed. Section 11(1) of the Sentencing Act 1995 provides that a person is not to be sentenced twice on the same evidence. Simmonds J stated at [22] – ‘Here the offence of aggravated stalking was constituted by the course of conduct whose constituents were the 12 breaches of the violence restraining order. The sentences for the 12 breaches of violence restraining order, globally, are the same as the sentence for the aggravated stalking.’ As such, the global sentence for the breach offences was set aside.
    2. The appellant submitted that a total effective sentence (without the sentence for the breach offences) of 19 months and 2 weeks was a crushing sentence and was not a just measure of the criminality involved. Simmonds J acknowledged that the Magistrate failed to recognise an overlap in the criminality between the stalking and breach offences, in that he did not have regard to the issue of double punishment, as noted above. However, this did not result in the sentence infringing the totality principle.
    3. An argument that the sentences for the aggravated stalking and firearms offences were manifestly excessive was dismissed. The appellant had some modest criminal history which did not involve violence. While he pleaded guilty, he showed minimal insight into his actions or empathy towards the victim. Simmonds J also noted the seriousness of the offending. In comparing analogous cases (see [70]-[72] for summaries) his Honour concluded that the sentence was within range.
    4. The Magistrate did not suspend the sentence because he was concerned that a suspended sentence would act as a sufficient deterrent to the appellant and would not provide adequate protection for the victim, as well as other matters. This approach was appropriate and this ground was dismissed.
  • The State of Western Australia v Bennett [2009] WASCA 93 (26 May 2009) – Western Australia Court of Appeal
    Damaging property’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Stealing motor vehicle’ – ‘Threat to kill’ – ‘Totality’ – ‘Wilful damage by fire

    Charge/s: Stealing a motor vehicle, wilful damage by fire, threat to kill.

    Appeal type: Appeal against sentence.

    Facts: On a number of occasions, the male respondent threatened the female complainant who he was in a relationship with. The respondent put his face against her, and said aggressively, ‘I’ll do 25 over you. If I can’t have you, no one will have you’. A few days later, the complainant told the respondent she was leaving him, and he said to her, ‘If you think you’re going to walk away I will kill you’. A few days after that, the intoxicated respondent grabbed the complainant’s throat and said, ‘I am going to kill you. If I can’t have you, no one can’. Afraid, the complainant left for a few days. The drunk respondent then stole a motor vehicle and crashed it into a wall at the front of the house. He spread petrol through the house and lit it on fire. The sentencing judge sentenced the respondent to 15 months’ imprisonment on the arson offence, 6 months’ imprisonment for stealing a motor vehicle, and 9 months’ imprisonment for the threat to kill. Her Honour recognised that the offence of threatening to kill took place on a different occasion but thought all sentences should be served concurrently.

    Issue/s: Some of the grounds included –

    1. The sentences imposed on the offences of arson and threat to kill was manifestly inadequate.
    2. The sentencing judge erred in her application of the totality principle.

    Decision and Reasoning: The appeal was allowed. The respondent was resentenced to an aggregate sentence of 4 years and 9 months’ imprisonment. The sentence of imprisonment was manifestly inadequate. The arson offence required the imposition of a deterrent sentence. The respondent’s personal circumstances carried less weight because this was a case of arson but regardless these did not provide much by way of mitigation. The appellant was a mature age, had an extensive criminal record, and his substance abuse problem could only be offered as an explanation rather than an excuse for his behaviour. This was a very serious case of arson ‘because the respondent’s offending was apparently motivated by revenge, it caused the destruction of a residential building, and it was against the background of a violent domestic relationship’ (See [48]-[51]). Further, the threat to kill was a very serious one. It was made against a history of domestic violence, and the complainant was afraid of the respondent (See [54]-[56]).

    Miller JA additionally held that the sentencing judge erred in her application of the totality principle. There was nothing crushing about imposing a cumulative sentence on the threat to kill offence. The sentence on the offence of threat to kill should instead have been lowered to reflect the totality principle (See [58]-[62]).

  • Gilmour v The State of Western Australia [2008] WASCA 42 (28 February 2008) – Western Australia Court of Appeal
    Aggravated stalking’ – ‘Attempt to pervert the course of justice’ – ‘Following, harassing, monitoring’ – ‘Systems abuse’ – ‘Temporary protection order

    Charge/s: Aggravated stalking, attempting to pervert the course of justice.

    Appeal type: Appeal against sentence.

    Facts: After the marriage between the male appellant and female complainant ended, the complainant noticed the appellant following her around. Several items went missing from her home. The appellant then damaged the property of a complainant’s male friend resulting in the imposition of a violence restraining order (VRO). The appellant subsequently breached this VRO. An altercation between the appellant and complainant led to the appellant being charged with assault and damage to property. He was acquitted on the assault charge. The appellant continued to follow the complainant around, telephoned her and would not speak, and made noises around her property at night. The complainant obtained a VRO. Notwithstanding this, the appellant changed a white light bulb at the complainant’s home to a red bulb. Cameras she installed at her property also detected the appellant wearing a gorilla mask and holding a knife in his hand. The appellant also attempted to pervert the course of justice in relation to this incident by requesting his neighbours provide him with an alibi. He received a term of 4 years' imprisonment in respect of the aggravated stalking and 10 months in respect of the attempt to pervert the course of justice, to be served cumulatively. That produced a total effective sentence of 4 years 10 months' imprisonment.

    Issue/s:

    1. The sentence in respect of the aggravated stalking offence was manifestly excessive, particularly in view of the appellant’s antecedents.
    2. The sentencing judge erred in imposing cumulative sentences.

    Decision and Reasoning: The appeal was dismissed. The sentence was not manifestly excessive. The personal circumstances favourable to the appellant (being only the absence of a prior record) could have limited weight in the circumstances, having the regard to the absence of remorse and a clear need for personal and general deterrence. This was determined and persistent pursuit of the complainant, in circumstances where she had obtained a restraining order and where he had been charged with offences arising out of his conduct towards her (See [12]-[13], [16]). Wheeler JA further held that the sentencing judge did not err in making the sentence of attempting to pervert the course of justice cumulative. This was more serious offending than the giving of a false name to police or entering a false recognisance. It was an attempt to pervert the course of justice in relation to an offence of a relatively serious nature and involved the use of innocent and unconnected third parties to engage in criminal conduct (See [17]-[19]). See Gilmour v State of Western Australia [2005] WASC 243 (8 November 2005).

  • Iveson v The State of Western Australia [2005] WASCA 25 (23 February 2005) – Western Australia Court of Appeal
    Assault occasioning bodily harm’ – ‘Breach of restraining order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Throttle’ – ‘Unlawful detention

    Charge/s: Unlawful detention, assaults occasioning bodily harm (x 2), breach of restraining order.

    Appeal type: Appeal against sentence.

    Facts: The male applicant struck the female complainant, his de facto partner, across her back with a pole (the first assault). The applicant retrieved a knife from the kitchen but did not use it. The complainant tried to escape out the front door but the applicant prevented this. He began to throttle her (the second assault). The complainant tried to attract attention through the open front door but the applicant shut the door (unlawful detention). The complainant passed out. When she came to, she was again choked by the applicant and lost consciousness. The complainant obtained an interim violence restraining order which the applicant subsequently breached by telephoning her. The sentencing judge imposed an aggregate sentence of 4 years and 10 months’ imprisonment.

    Issue/s: Some of the grounds of appeal included –

    1. The total criminality of the applicant’s conduct did not justify the imposition of a cumulative sentence for the second, more serious assault. The conduct of the unlawful detention merged with the throttling of the complainant.
    2. The proper application of the totality principle would lead to the conclusion that the aggregate term of 4 years and 10 months was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. First, the individual sentences were well within the discretion of the sentencing judge. The two assaults were of a different character to each other and were further distinguishable from the unlawful detention offence because this did not cause her bodily harm. The decision to order the sentence on the second assault (throttling) to be cumulative was also appropriate in recognition of its particular seriousness and additional criminality (See [25]-[26]). Second, the aggregate term was not manifestly excessive. Although the applicant was a young man, his criminal history was not as bad as it might have been, he was remorseful, and appreciated that his conduct was largely driven by the effects of his drug abuse, the offences were very serious. The second assault was ‘about as serious an example of this offence as it would be possible to find’. The applicant endeavoured to throttle the victim, she lost consciousness twice, he renewed his attack, he persisted in the attack even after she tried to escape, and he obtained a knife (which he did not use, to his credit). Further, he ignored the terms of the violence restraining order (See [31]).

  • The State of Western Australia v Anderson [2004] WASCA 157 (29 July 2004) – Supreme Court of Western Australia (Court of Appeal)
    Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Assault occasioning bodily harm’ – ‘Parole eligibility order’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Threat to kill

    Charge/s: Assault occasioning bodily harm, threat to kill.

    Appeal Type: State appeal against sentence.

    Facts: While intoxicated, the respondent, an Aboriginal man, found the complainant (his de facto partner) in bed asleep with another man. The respondent slapped and punched the complainant which woke her. The respondent then pulled her from her bed and dragged her 200m down a street, at which point he hit her repeatedly with a steel stake and ripped her bra off. He then grabbed her throat, threatened to kill her repeatedly and pinned her to the ground. She was in genuine fear for her life. The respondent’s criminal history included serious incidents of domestic violence committed against his former partner and other offences of violence. He was sentenced to 18 months’ imprisonment for each offence, to be served concurrently. A parole eligibility order was not made.

    Issue/s: Whether the sentencing judge erred in reducing the length of the sentence to allow for the fact that he did not make a parole eligibility order.

    Decision and Reasoning: The appeal was upheld. The Court held that the sentencing judge erred by reducing the sentence on account of not making a parole eligibility order. Jenkins J (with whom Murray and McLure JJ agreed) noted that the sentence imposed at trial was significant, given the respondent’s plea of guilty and the maximum penalties. However, the Court noted the seriousness of the offence and described it at [26] as ‘close to the worst category of cases of this kind’. The offending was aggravated by the repeated use of a weapon and the complainant being humiliated by the removal of her bra which rendered her half naked during the beating. The context in which the respondent found the complainant amounted to ‘some mitigation’ but this was ‘not significant’, given the respondent’s history of domestic violence and having previously undergone counselling in anger management and substance abuse (see at [28]). Indeed, an exchange with the sentencing judge showed that it was unlikely his plea was indicative of true remorse (see at [14]). The sentence was increased to two years’ imprisonment.

  • Hellings v The Queen [2003] WASCA 208 (3 September 2003) – Western Australia Court of Appeal
    Aggravated stalking’ – ‘Following, harassing, monitoring’ – ‘Parole’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Temporary protection order’ – ‘Threat with intent’ – ‘Totality’ – ‘Violence restraining order

    Charge/s: Aggravated stalking (x 2), threat with intent to prevent the complainant doing an act she was lawfully entitled to do.

    Appeal type: Appeals against conviction and sentence.

    Facts: While in a relationship with the male applicant, the female complainant were in a relationship obtained two restraining orders. The relationship ended and she obtained another violence restraining order. The applicant was charged with two counts of aggravated stalking. Further, he was charged with making a threat with intent to prevent the complainant doing an act she was lawfully entitled to do because of a 10-page letter he sent to the complainant. This was ‘abusive in the extreme’ and threatened violence against the complainant if she participated in the court action. The applicant was acquitted of the indictable offence for the first aggravated stalking charge and convicted of the alternative simple offence. He was found guilty in two other trials for the second indictable aggravated stalking offence and for the threatening letter. The complainant gave evidence of the relationship between her and the applicant. On occasions, her answers were unresponsive to questions and rambling but neither counsel made any effort to prevent the complainant answering questions in that way. The applicant was sentenced respectively to 6 and a half years’ imprisonment and 5 years’ imprisonment, cumulative. The applicant sought leave to appeal against these latter two convictions and sentences.

    Issue/s: Some of the issues included –

    1. A miscarriage of justice arose because evidence of the relationship should have been deemed inadmissible or should have been excluded on discretionary grounds in both the stalking and threatening letter trials.
    2. In the stalking trial, the trial judge erred by failing to give adequate directions to the jury as the relevance of the ‘context’ or ‘relationship’ evidence and to the extent they could use it in their deliberations.
    3. The trial judge erred in not making a parole eligibility order.
    4. The sentences were manifestly excessive in all circumstances concerning their commission and, when accumulated, the total term of 11 and a half years’ imprisonment is disproportionate to the total offending behaviour.

    Decision and Reasoning: The appeals against conviction and sentence were dismissed. First, while some of the complainant’s evidence in both the stalking and threatening letter trials was inadmissible or might have been objected to on discretionary grounds, there was no resulting miscarriage of justice (See [34]-[36] and [60]-[63]). The evidence that was inadmissible or might have been excluded was insignificant having regard to the evidence that was admissible relating to relevant aspects of violence and harassment in the relationship (See [34]-[36]).

    Second, a direction to the jury regarding the use of the complainant’s relationship evidence as ‘propensity evidence’ was not necessary here. ‘Such a direction will be very necessary in cases where there is a danger that the jury might reason that because an accused person has conducted himself in a particular way in the past towards his victim he might be found to have done so again at the time alleged by the indictment’ (See [39]). This was not the case here as there was no real dispute that the applicant breached the violence restraining order or that his actions fell within the meaning of pursuit (See [37]-[39]).

    Third, the discretion not to order parole eligibility did not miscarry in this case. The applicant remained beset by a deep-seated psychological disorder. His aggression was unchecked and his past behaviour showed that if parole eligibility was ordered he would be likely to reoffend (See [85]-[87]).

    Finally, the sentences were not manifestly excessive. The stalking offence was of a very serious kind. The offending occurred when the applicant was already charged with an offence of aggravated stalking, he failed to appear on the date for trial, and was eluding authorities. The nature of the stalking itself was serious and persistent with 160 calls over a 22-day period and overt threats being made (See [92]-[97]). Further, in relation to the threatening letter offending, the threats were credible, and ‘serious and graphic’. The purpose of the threat, to prevent a person engaging in lawful activities, significantly aggravated the offending (See [98]-[99]). In terms of totality, the total sentence was not disproportionate to the offending given the persistent nature of the applicant’s conduct, the period of time over which it took place and the serious nature of the offending (See [101]).

  • Owen v Jilba [2002] WASCA 283 (17 October 2002) – Supreme Court of Western Australia (Court of Appeal)
    Breach of misconduct restraining order’ – ‘Following, harassing, monitoring’ – ‘Intimidation’ – ‘Lawful conduct

    Charge/s: Breach of misconduct restraining order.

    Appeal Type: State appeal against dismissal of charge.

    Facts: A misconduct restraining order was in place against the respondent which prevented him from behaving in an ‘intimidatory or offensive manner’ towards the complainant. He was charged with breaching that order by intimidating the complainant. The alleged intimidatory conduct included the respondent driving past the complainant’s house and staring at her such that she felt intimidated. At trial, the Magistrate accepted a no case submission made by the respondent’s counsel. The Magistrate concluded that an order which restrained the respondent from behaving in an ‘intimidatory or offensive’ way was not authorised by the Restraining Orders Act 1997 (the Act). The Magistrate concluded that the respondent’s alleged conduct would constitute an offence under the Police Act 1892. As such, because the Act only provides for the restraint of ‘lawful’ activities, an order which purported to restrain ‘unlawful’ conduct would fall outside the scope of the section. The Magistrate was also concerned with the subjective nature of the alleged intimidation. The order appears to prevent conduct which is objectively intimidatory, but the evidence referred to the subjective experience of the protected person.

    Issue/s:

    1. Whether the Magistrate was correct in concluding that the purported intimidatory behaviour was not ‘objectively intimidating’ within the meaning of the order.
    2. Whether it is open for restraining orders to restrain unlawful conduct.

    Decision and Reasoning: The appeal was dismissed.

    1. Wheeler J agreed with the Magistrate’s concerns and held that while conduct that is subjectively intimidating will often coincide with conduct that is objectively intimidating, ‘it is self-evident that not all conduct which is experienced by a person as intimidating will be regarded as intimidatory from the point of view of an objective observer. The person who feels intimidated may be hypersensitive or may simply misunderstand the nature of the conduct’ (see at [6]). In this case, the Court found that given there was little context or background before the Magistrate (such as acts of prior violence, property damage or threats), merely driving near someone’s house and staring at them for a ‘relatively short period’ is difficult to perceive as intimidatory. While the respondent’s conduct may have upset and intimidated the protected person subjectively, it could not objectively be regarded as intimidatory.
    2. Wheeler J concluded that it was unlikely that the purpose of the Act was to substitute the sanctions of the criminal law or provide another means for deterring and punishing the commission of offences. However, her Honour then held that the Magistrate erred in finding, ‘that the mere fact that conduct which was alleged to be in breach of a restraining order was at the same time conduct which might be punishable under some other legislation took it outside the scope of the order, or alternatively meant that the order was not a "proper" order as applicable to such conduct’ (see at [17]). Rather, the power to impose restraints of ‘lawful activities and behaviour’ under the Act should be read as granting a power to impose restraints on broadly lawful behaviour. Her Honour gave the example of an order purporting to restrain ‘threatening’ behaviour which could be lawful or unlawful behaviour, depending on the context. On the other hand, an order which restrains a person from murdering another would fall outside the scope of the Act. As such, depending on the circumstances and context, conduct in breach of a restraining order could be conduct which contravenes other legislation, and should not for that reason be determined to be outside the scope of the Act.
  • Ugle v The Queen [2001] WASCA 268 (31 August 2001) – Supreme Court of Western Australia (Court of Appeal)
    Assault occasioning bodily harm’ – ‘Exposing a child’ – ‘High risk’ – ‘People affected by substance abuse’ – ‘Perpetrator intervention program’ – ‘Sentencing’ – ‘Unlawful wounding with intent to cause grievous bodily harm

    Charge/s: Assault occasioning bodily harm, unlawful wounding with intent to cause grievous bodily harm.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant was in a de facto relationship with the complainant and had 1 child. The assault offence occurred after the couple split up. The applicant repeatedly called the complainant. He approached the complainant as she walked to a shopping centre. He then grabbed her by the hair and punched her to the back and head. The applicant made numerous threats to kill the complainant during the assault and she attempted to run away but he dragged her back. The unlawful wounding offence involved the applicant forcing his way into the complainant’s house. He stabbed her numerous times in the chest, back and neck and also attempted to stab her in the face. She pretended to be dead so as to stop the attack. While he was in remand, police officers made a number of telephone calls on the applicant’s behalf indicating that he wished her to visit him. She did not do so and moved into a refuge after her release from hospital. However, her whereabouts was discovered by members of the applicant’s family so she was forced to move. The complainant suffered lasting psychological injuries and her daughter was severely traumatised as the events occurred in her presence. The applicant was sentenced to three years’ imprisonment for the assault offence and 9 years’ imprisonment for the wounding offence, to be served cumulatively such that the total effective sentence was 12 years, with parole eligibility.

    Issue/s: One of the issues concerned whether the sentences were manifestly excessive.

    Decision and Reasoning: Leave was granted and the appeal was upheld.

    The appellant submitted that the 9-year sentence imposed for the unlawful wounding offence was excessive. Malcom CJ (with whom Steytler J and Burchett AUJ agreed) held that this was a vicious, pre-meditated attack which put the complainant’s life in danger. Nevertheless, the sentencing judge’s starting point for the wounding offence (before the applicant’s guilty plea) was 12 years, which the Court held was excessive and that a starting point of 9 years would have been appropriate. It was noted at trial that the appellant remained a high risk of reoffending and prison based alternatives to violence programs to develop more appropriate strategies for resolving conflicts in relationships were recommended. This recommendation was not disapproved by the Court of Appeal. The appellant was re-sentenced to 6 years’ imprisonment for the wounding charge, which resulted in a total effective sentence of 7 years and 4 months.

  • Sandle v Crofts [2001] WASCA 106 (30 March 2001) – Supreme Court of Western Australia (Court of Appeal)
    Assault occasioning bodily harm’ – ‘Exposing a child’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Sentencing

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The appellant arrived home late at night and asked his wife if she had had anyone in the house while he was overseas. She said no, at which point he punched her in the face. She then told him she did have a man in the house. He then started hitting her in the face and head with closed fists. He pulled her by the hair to a chair. He then hit her again and kicked her in the side while on the floor which caused her to black out. She was awoken by her son calling for her. Fearing for her life, she jumped off the balcony which was about three metres off the ground. The appellant tried to drag her up the stairs by the ankles which she resisted. She sustained severe injuries. The defence case was that the complainant’s injuries were as a result of self-harm and she jumped off the balcony by choice. The appellant had no criminal history. He was sentenced to 12 months’ imprisonment with parole.

    Issue/s:

    1. Whether the conviction was unreasonable and cannot be supported having regard to the evidence.
    2. Whether the sentence was manifestly excessive and whether the Magistrate gave insufficient weight to the ‘mitigating circumstances of great provocation’ leading up to the incident.

    Decision and Reasoning: The appeal was dismissed.

    1. This argument was dismissed – see at [28]-[50].
    2. McKechnie J found that this offence was ‘a vicious assault by a husband upon his wife without reason or provocation’ (see at [52]) and that in cases of domestic violence a sentence encompassing general and personal deterrence is called for. The Court then held that a 12-month term of imprisonment was called for given the circumstances of the offence. However, the Court did acknowledge that given this was the appellant’s first offence (he had no history of violence), it may have been appropriate for the sentence to be suspended for two years so as to provide for rehabilitation. However, ultimately the 12-month sentence was within the discretion of the Magistrate.
  • Mead v Couper [2000] WASCA 345 (10 November 2000) – Supreme Court of Western Australia (Court of Appeal)
    Assault occasioning bodily harm’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The appellant had been told (untruthfully) that his de facto wife of six years had been sleeping with another man. The appellant accused her of doing so and then punched her in the face with a clenched fist multiple times. The complainant fell to the ground and the appellant kicked her in the back. He then grabbed her and carried her to a nearby yard. After the complainant yelled at the appellant to let her go, he released her and raised a wooden fence post above his head in a threatening way. The complainant suffered a broken jaw, facial swelling, various cuts and a sore back. The appellant was sentenced to 18 months’ imprisonment with parole edibility.

    Issue/s: Some of the issues concerned –

    1. Whether the sentence was manifestly excessive or should have been suspended.
    2. Whether the Magistrate erred in rejecting a supervision order coupled with an anger management course as a suitable penalty.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that: he had no prior convictions involving violence; he had favourable prospects of rehabilitation; he demonstrated remorse and entered an early plea of guilty; his wife did not want him to be sent to prison and a prison sentence would have a harsh effect upon his wife and children. The Court rejected these arguments. Steytler J held that the assault was ‘vicious’ and caused serious injuries. His Honour also upheld previous authorities which indicate there is a general public concern with domestic violence (see at [13]).
    2. The sentencing Magistrate commented that some in the community would view a supervision order coupled with an anger management course as a ‘soft option’. Steytler J held that the Magistrate was simply concluding that the offence was so serious as to justify only a period of imprisonment and that general deterrence was of paramount concern. His Honour held that general deterrence is an important consideration in cases of domestic violence and that it was open for the Magistrate to conclude that general deterrence would not sufficiently be met by anything other than a sentence of imprisonment.
  • Bartlett v Scantlebury [2000] WASCA 234 (29 August 2000) – Supreme Court of Western Australia (Court of Appeal)
    Assault’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse

    Charge/s: Assault.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in a de facto relationship with the complainant. On Christmas Day 1999, the appellant was heavily intoxicated. An argument occurred. The appellant then assaulted the complainant by squeezing her arms and pulling her hair while she attempted to leave the house. The Magistrate also accepted that the appellant had engaged in intimidatory and threatening conduct over the previous two days. The appellant’s evidence differed substantially. The Magistrate found that the appellant’s evidence was contrived and manipulative and sought to paint his actions without fault. The Magistrate noted the protracted and serious nature of the offending. The complainant was left with no substantial physical injuries but there was a significant mental impact. The Magistrate also noted the fact that domestic violence cases are insidious, difficult to detect and have significant implications for the parties and the general community (see at [8]). The appellant was sentenced to 12 months’ imprisonment with parole eligibility.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld.

    Miller J disagreed with the Magistrate’s conclusions that deterrence outweighed all other sentencing considerations and that the seriousness of the offence meant that the only justifiable sentence was imprisonment. His Honour noted that this case concerned only one assault, which was the combination of seizing the complainant by the arm and pulling her hair. The Court also held that the Magistrate had placed undue weight on the events leading up to the assault and noted that the appellant had only been charged with one offence. While it was appropriate to take into account the traumatic effect of the assault on the complainant and correct that assaults involving domestic violence call for deterrent sentences, ‘this assault could not be categorised as being of the most serious kind’ and the description of it as such was an ‘over-reaction to the facts of the case’ (see at [17]). Miller J therefore set aside the sentence of imprisonment and fined the appellant $6000.

  • McCormack v The Queen [2000] WASCA 139 (25 May 2000) – Supreme Court of Western Australia (Court of Appeal)
    Deterrence’ – ‘Evidence’ – ‘Following, harassing, monitoring’ – ‘Grievous bodily harm with intent’ – ‘Intent’ – ‘Mitigating factors’ – ‘mental illness’ – ‘Physical violence and harm’ – ‘Relationship evidence’ – ‘Sentencing

    Charge/s: Grievous bodily harm with intent, attempted murder.

    Appeal Type: Appeal against conviction and application for leave to appeal against sentence.

    Facts: The appellant and his wife began conversing together with a man online. After some time, the appellant’s wife’s conversations with this man became ‘more flirty and intimate’ and eventually his wife agreed to stop using the internet. She said goodbye to this man and she refused to tell her husband what they discussed in this conversation. The next day, after attempting to discuss the issue with his wife, he stabbed her in the upper back while she was in bed either asleep or attempting to sleep. He then stabbed her again as she attempted to flee. He then unsuccessfully attempted to commit suicide. The appellant was found not guilty of attempted murder but guilty of grievous bodily harm with intent and was sentenced to 8 years’ imprisonment with parole eligibility.

    Issue/s: Some of the issues concerned –

    1. Whether the trial judge erred in instructing the jury that they could use evidence of the relationship between the appellant and his wife in the months leading up to the attack for the purposes of determining intention.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that the judge had misdirected the jury in allowing them to use evidence of disagreements between the appellant and his wife about her use of the internet and the breakdown of their relationship to infer the presence of intent. Kennedy J (with whom Pidgeon and Ipp JJ agreed) rejected this argument and held that the relationship was clearly admissible evidence which the jury could take into account in considering the appellant’s intention when he attacked his wife (see at [19]).
    2. The sentencing judge took into account various mitigating factors including the appellant’s high degree of emotional distress arising from his childhood which left him with a ‘dependent personality disorder, chronic depression and anxiety’. The sentencing judge also took into account the victim impact statement, which described the devastating effect of the attack on the appellant’s wife and children. The sentencing judge also correctly noted the need for personal and general deterrence in domestic violence cases and that no form of domestic violence is acceptable, especially when it includes the use of a weapon. Kennedy J (Pidgeon J and Ipp J agreeing) held that although the sentence imposed was high, it was within the range of the sentencing discretion and correctly weighed the mitigating factors (see at [27]) and the need for general deterrence.
  • Vickers v Bailey [2000] WASCA 136 (19 May 2000) – Supreme Court of Western Australia (Court of Appeal)
    Assault’ – ‘Deterrence’ – ‘Exposing a child’ – ‘People with mental illness’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Suspended sentence’ – ‘Verbal abuse

    Charge/s: Assault (eight counts).

    Appeal Type: Appeal against sentence.

    Facts: The complainant was the appellant’s de facto partner. After returning home intoxicated, the appellant ‘lost the plot’ after discovering that the cat had defecated on the bed. He assaulted the complainant. The following day, there was a further altercation and the appellant assaulted the complainant several times, including by squeezing her throat, throwing coffee and the contents of an ashtray over her and ‘(pushing) up her chin and started spitting into her face’ in the presence of their children. The complainant then obtained a restraining order against the appellant but was unable to particularise many of the assaults due to the length and nature of the incident. The appellant conceded that the assaults were a build-up of frustrations over the last 12 months of the relationship and submitted that he suffered from depression, was remorseful and had never previously been violent towards the complainant. The appellant was sentenced to 9 months’ imprisonment for each count, to be served concurrently.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. The appellant submitted that notwithstanding the seriousness of the offending, a sentence of imprisonment was not the only option. Counsel for the respondent submitted that while each assault in isolation may have warranted a lesser penalty, the combination of all the counts and the time period over which they were committed aggravated the circumstances of the offence. The respondent also submitted that cases of domestic violence call for a sentence of personal and general deterrence.

    Miller J agreed but emphasised that regard must be had to the individual circumstances of the case – ‘I entirely agree with the submissions of counsel for the respondent that in general terms, a deterrent sentence for domestic violence offences will be called for. Much, however, depends upon the extent of the violence. Whilst here there were multiple offences and offences committed over a period of time, the complainant fortunately appears to have escaped injury. Further, seven of the offences appear to have occurred as one group of offences. Additionally, the appellant does not appear to have ever assaulted his de facto in the past, there being no allegation to that effect in the pre-sentence report, statement of facts or elsewhere and there being no victim impact statement from the complainant’ (see at [12]). Miller J noted the pre-sentence and psychological report which suggested the appellant needed counselling in relation to anger. The appellant himself initiated contact with a domestic violence program and was proposing to participate in that program. As such, the Court found that the appellant should have been given the opportunity of a suspended sentence as an inducement for him to reform.

  • Pillage v Coyne [2000] WASCA 135 (19 May 2000) – Western Australia Court of Appeal
    Breach of violence restraining order’ – ‘Importance of appropriate penalties’ – ‘Physical violence and harm’ – ‘Technical or trivial breach’ – ‘Temporary protection order

    Charge/s: Breach of violence restraining order.

    Appeal type: Appeal against sentence.

    Facts: The female appellant and the male respondent had been in a relationship for six years. The appellant obtained an interim violence restraining order against the respondent. The respondent was charged with one offence of unlawful assault and four offences of breaching a violence restraining order. The magistrate dismissed the charge of assault and two charges of alleged breach of a violence restraining order. He convicted the respondent of two charges of breach for going into the bedroom of the complainant in the early hours of the morning and communicating with her by telephone on the same morning. The magistrate gave no real reasons for either the acquittals or the convictions he recorded (See [6]). The magistrate also decided to impose no penalty, without giving any reasons for doing so (See [7]).

    Issue/s: The magistrate erred in law and in fact in imposing no penalty or sentence.

    Decision and Reasoning: The appeal was upheld. The magistrate made no reference to the provisions of the section of the Act allowing for the imposition of no penalty if certain preconditions are met. This constituted sufficient grounds for allowing the appeal. Further, this section also had no relevance in this case. The circumstances of the offence were neither trivial or technical (See [9]-[12]), and it was not unjust to impose a sentence in light of the fact that respondent was 42 years of age, employed with a regular income, and had a prior record of convictions (See [13]). Miller J also noted the clear social importance of the Restraining Orders Act 1997. His Honour provided, ‘protected persons in the community generally must have confidence that restraining orders will be obeyed and complied with … [When] they are not, there must be significant consequences to support the fact that restraining orders mean something … [The] courts [must] ensure that their orders are not ignored’ (See [13]-[15]). Fines of $750 and $250 were substituted. See also Dawes v Coyne [2000] WASCA 134.

  • Dawes v Coyne [2000] WASCA 134 (19 May 2000) – Western Australia Court of Appeal
    Physical violence and harm’ – ‘Temporary protection order’ – ‘Violence restraining order

    Proceeding: Violence restraining order.

    Appeal type: Appeal from decision of magistrate to place appellant on violence restraining order.

    Facts: The female appellant and the male respondent had been in a relationship for six years. The appellant obtained an interim violence restraining order against the respondent. The respondent was subsequently charged with one offence of unlawful assault and four offences of breaching a violence restraining order. The magistrate dismissed the charge of assault and two charges of breach of the violence restraining order but convicted the respondent of two charges of breach. No penalty was imposed in respect of these breaches. Without warning, the magistrate also placed the appellant on a violence restraining order.

    Issue/s: The magistrate erred in placing the appellant on a violence restraining order.

    Decision and Reasoning: The appeal was allowed and the violence restraining order set aside. The magistrate’s actions were in every way a complete breach of the Act. The magistrate ‘gave no indication of what it was that he intended to do, failed to alert the appellant to the possibility that an order might be made against her, and made no invitation to her to respond in any way’ (See [10]).

    Miller J also noted that the magistrate ‘started by stating that it was a tragedy that ‘domestic matters of this sort get into the criminal court’ and made the observation that ‘both parties had been causing trouble for the police who do not want to be involved in these sort of things’’. These observations were ‘entirely inappropriate’ (See [6]). See also Pillage v Coyne [2000] WASCA 135.

  • Gallegos v R [1999] WASCA 191 (6 October 1999) – WA Court of Criminal Appeal
    Complainant and applicant ex-lovers’ – ‘Complainant pregnant at time of assault’ – ‘Domestic violence’ – ‘Sentence not excessive

    Charge/s: Aggravated burglary and assault occasioning bodily harm

    Appeal type: Application for leave to appeal against sentence.

    Facts: the applicant and complainant shared a brief sexual relationship, but did not live together. The applicant saw the complainant in a night club in Fremantle. He spat on her and wiped faecal material on her face. She went home. He followed her, without permission. At the house, he punched her repeatedly and kicked her. He also threatened her with a knife. The assault caused significant injuries to the complainant. The applicant pleaded guilty and, at first instance, was sentenced to three and a half years’ imprisonment.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: Application refused. The applicant was self-represented. Chief Justice Malcolm considered that the way in which the earlier assault at the night club had preceded the aggravated burglary showed some persistence in the offending. It also exhibited an element of premeditation. The seriousness of the offending was elevated by the fact that the applicant knew that the complainant was pregnant at the time and the nature of the attack was such that no regard was paid to the safety of the foetus. His Honour said at [28]:

    “It is now clear that in cases of domestic violence a sentence which gives effect to both personal and general deterrence will normally be called for. The circumstances may be such as to justify a substantial sentence of imprisonment”.

Supreme Court

  • The State of Western Australia v Liyanage [2016] WASC 12 (12 January 2016) – Supreme Court of Western Australia
    Emotional abuse’ – ‘Evidence’ – ‘Expert evidence’ – ‘Expert opinion evidence’ – ‘Following, harassing, monitoring’ – ‘Opinion evidence’ – ‘Physical violence and harm’ – ‘Social worker

    Charges: Murder.

    Proceeding: Ruling on admissibility of evidence.

    Facts: The accused and her husband argued about a work related matter before retiring to their bedroom. The prosecution case was that in the early hours of the morning, the deceased spoke to his brother on the phone. After this, the accused obtained a metal hammer from a cupboard and struck the deceased to the head while he was sleeping. The accused stated that she had no memory of the events between falling asleep and standing over her husband’s body before she called 000. She stated in an interview with police that the relationship was marked by physical and emotional abuse and referred to instances where she was coerced by the deceased to engage in sexual acts which he recorded and to engage in non-consensual sexual relations with other females. The deceased controlled her finances and social life. The defence case was based either on ‘non-insane automatism’ or self-defence. The argument for self-defence was that even though the accused may not have been facing an imminent threat of harm, she believed that the deceased would harm her such that her actions were necessary to protect herself.

    Issue/s: Whether the evidence of a social worker (a family and domestic violence consultant) is relevant to self-defence so as to be admissible as expert evidence.

    Decision and Reasoning: The evidence of the social worker was held to be inadmissible. The social worker was employed by Anglicare Western Australia with responsibilities including advice, consultation and clinical supervision to staff who work in programs dealing with domestic and family violence. She previously worked in a refuge as a ‘domestic violence trauma counsellor’ and as a university lecturer in ‘behavioural science, community development and interpersonal violence and abuse’ (see at [14]).

    She interviewed the accused in prison in relation to obtaining information about the accused’s history and beliefs as to her risk of harm from the deceased. She used two ‘actuarial tools’ and other guides which had been developed for assessing the risk of domestic violence. Hall J noted that there have been no other cases where these types of risk assessment tools have been used, ‘retrospectively to determine whether an accused person was at risk of harm from the deceased in order of support a claim of self-defence’ (see at [58]). His Honour held that the requirement for opinion evidence to be based upon ‘soundly based and validated scientific study’ remained important (see at [59]). The social worker’s evidence referred to ‘battered woman syndrome’ (BWS), and went so far as to describe the effect of the syndrome on the accused. Evidence about BWS ‘almost invariably’ ([61]) comes from psychologists and psychiatrists. Social workers are not qualified to give evidence about the ‘learned helplessness’ associated with BWS.

    As to the social worker’s evidence of the accused’s own assessment of her risk of harm from the deceased, the Court held that the accused herself could give evidence about this matter herself if she chose. The social worker compared the accused’s statements in her own interview with the accused’s statements in her interview with police. This is a comparison the jury is capable of doing themselves. Furthermore, while the social worker’s experience working with victims of domestic violence was not in dispute, this did not mean that she was able to give expert evidence – ‘Whether or not domestic violence occurred and who was the victim and the perpetrator of it, are matters for the jury to determine. These are issues that a jury is capable of determining without opinion evidence. There is nothing esoteric about the concept of domestic violence’ (see at [83]). His Honour distinguished Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998), on the basis that the evidence in that case described ‘a particular pattern of behaviour of some victims that differed from normal behaviour, that had been studied and accepted as being scientifically valid, and which could be recognised by qualified psychologists as occurring in other cases’ not because it related to the ‘behaviour of domestic violence victims generally’ and, ‘to the extent that the behaviour of the accused is said to be typical of domestic violence victims generally and is not abnormal, it has not been established that this is something that jurors are incapable of properly understanding without (the social worker’s) evidence’ (see at [86]).

  • Bacchelli v Merchant [2015] WASC 205 (9 June 2015) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Insanity’ – ‘Miscarriage of justice’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Plea of guilty

    Charge/s: Breach of violence restraining order.

    Appeal Type: Appeal against conviction.

    Facts: The appellant pleaded guilty to breaching a violence restraining order in favour of his wife and was fined $500 with costs. The breach arose out of the appellant’s attendance at his wife’s home to retrieve some of his property. He claimed he had misunderstood the terms of the violence restraining order and that if he had known that the order did not permit him to attend the house, he would have attended the police station and asked officers to accompany him while he retrieved the property. The appellant had previously been diagnosed with bipolar disorder and had tendered medical records to the Magistrate.

    Issue/s: Whether there was a miscarriage of justice because when the appellant pleaded guilty he was unaware he had an arguable defence of unsoundness of mind.

    Decision and Reasoning: The appeal was upheld and a retrial was ordered. The appellant’s affidavit on appeal stated that he was suffering a relapse of his bipolar disorder when he pleaded guilty to the charge. A psychiatrist’s affidavit indicated that it was more likely than not that the appellant was, ‘in such a state of mental impairment so as to deprive him of the capacity to know that he ought not to assault someone or return to his house’ (see at [36]). However, at the time he pleaded guilty, he was not aware that his mental state was not normal. As such, the evidence indicates that he may have had an arguable insanity defence at the time of the guilty plea. Furthermore, when the appellant consulted with a solicitor, there was no discussion in relation to a possible insanity defence, even though the solicitor knew of the appellant’s history of mental illness. There was no available evidence at the time that the lawyer should have considered the availability of a mental impairment defence. Nevertheless, Beech J held that, ‘through no fault of his own, Mr Bacchelli had no practical opportunity to raise the possible defence of insanity, or the facts relevant to it, with his lawyer’ (see at [54]). The appellant had an arguable defence but had no way of knowing of that defence, such that his plea was fundamentally not an informed one. Beech J noted that this does not mean a plea will always be set aside in these circumstances but in this case, the nature of the appellant’s ignorance of the defence resulted in a miscarriage of justice.

  • Bernard v Williams [2015] WASC 182 (30 April 2015) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Consent’ – ‘Immediate imprisonment’ – ‘Repeated breaches of a restraining order’ – ‘Temporary protection order

    Charge/s: Breach of violence restraining order.

    Appeal type: Appeal against sentence.

    Facts: The appellant pleaded guilty to two breaches of a violence restraining order. He breached the order by living with the protected person and by being within a hundred metres of the protected person (in the same house as her). At the same time, the appellant was also dealt with for an earlier breach alleging that he was within a hundred metres of the protected person (attending and remaining at the protected person’s address). This was a ‘third strike’ case in which the magistrate was required to impose a penalty that is or includes imprisonment. The magistrate imposed a term of imprisonment for six months for each offence. A sentence of six months or less may not be imposed (Sentencing Act 1999 (WA) s86). The day before the hearing of this appeal, the Magistrates Court recalled the sentence and imposed a sentence of 6 months and 1 day.

    Issue/s: One of the issues was that the sentence contravened the Sentencing Act.

    Decision and Reasoning: The appeal was allowed. If it was not for the error in imposing a sentence of six months, the decision of the magistrate to impose a sentence that included imprisonment would have been within the sound exercise of sentencing discretion. The appellant had breached a VRO repeatedly (See Pillage v Coyne [2000] WASCA 135 at [13]-[15]). The correction of the sentence to 6 months and 1 day was not made in compliance with s 37(2) of the Sentencing Act as the magistrate did not give the appellant the opportunity to be heard. The appellant fell to be resentenced.

    A sentence of suspended imprisonment would have been appropriate but for the fact that the appellant had already served 6 weeks in prison. The term of imprisonment was set aside and the appellant fined $1,500. The court took into account a number of factors including that the protected person expressed no fear of the appellant at the time of appeal; it was important to demonstrate to the appellant that he could not disregard the order of the court with impunity; the consent of the protected person was not a mitigating factor but it was relevant in considering the circumstances of the offence; and although there had been repeated breaches of the order, there was nothing to suggest actual violence or threat of violence (See [25]-[28]). His Honour also cited Pillage v Coyne [2000] WASCA 135 where his Honour Miller J described the Restraining Orders Act as social legislation of the utmost importance:

    ‘...protected persons in the community generally must have confidence that restraining orders will be obeyed and complied with .. [When] they are not, there must be significant consequences to support the fact that restraining orders mean something .. [The] courts [must] ensure that their orders are not ignored [14].’

  • Wallam v Grosveld [2015] WASC 145 (24 April 2015) – Supreme Court of Western Australia
    Breach of restraining order’ – ‘Imprisonment’ – ‘People affected by substance abuse’ – ‘Sentencing

    Charge/s: Breach of restraining order.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant was subject to a violence restraining order (VRO) in favour of his former partner which prevented him from approaching her and from being within a nominated distance of her premises. He attended her premises in breach of the order. He claimed that he and the protected person were ‘back in a relationship’. His had a history of breaching restraining orders in place against the same protected person. He was sentenced to 8 months’ imprisonment.

    Issue/s: Some of the issues concerned –

    1. Whether it was reasonably open for the Magistrate to conclude that a sentence of immediate imprisonment was the only appropriate sentencing option.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. It seemed that the protected person invited the applicant back to her premises to collect his clothes. Notwithstanding, any breach of a VRO is serious. Justice Kenneth Martin commented on the penalties for the offence and then noted at [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.’

    In this case, there had been no threatening or intimidatory behaviour. While an adverse inference could be drawn from the apparent fact that the applicant was hiding when police arrived, the applicant’s actions cannot be seen as a ‘calculated and flagrant’ contempt of the VRO – ‘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’ (see at [80]).

    His Honour expressly stated that he was not meaning to convey that for some VRO breaches which include a ‘flagrant disregard’ for court orders, ‘a term of immediate imprisonment will not present as the only appropriate sentencing option’ (see at [81]). However, in this case the circumstances (including that the penalties imposed upon him for his prior breaches were only fines and the benign nature of the breach) meant that an escalation in punishment from these pecuniary penalties up to a term of 8 months’ imprisonment, was not within the discretion open to the Magistrate. (Note: this position would be altered if s 61A of the Restraining Orders Act 1997 (WA) applied, which provides for a requirement of imprisonment after 2 discrete offences within a 2-year period).

    2. This argument was also upheld.

  • Rogers v Hitchcock [2015] WASC 120 (7 April 2015) – Supreme Court of Western Australia
    Breach of police order’ – ‘Criminal history’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Programs for perpetrators’ – ‘Sentencing

    Charge/s: Breach of police order.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was at a caravan park with his wife and two-year-old child. The appellant and his wife were drinking heavily when a disagreement occurred and police attended. Police issued a 72-hour order under the Restraining Orders Act 1997 (WA) which prevented the appellant from communicating with his wife or approaching within 100 metres of her. The next day, police attended to check on the appellant’s wife and discovered the appellant hiding in the house. The appellant had a minor but relevant criminal history involving two breaches of prior police orders made in favour of his wife. He pleaded guilty, was granted bail and was placed on a ‘domestic violence behaviour change programme’ under the supervision of a Family Violence Court. He completed the majority of the program but was unable to complete it because he was remanded in custody after attending his wife’s home in breach of bail. A progress report about his participation in the program was provided to the Magistrate, which stated that he generally ‘reported as directed and engaged well’ but that he ‘had made no identifiable treatment gains during the programme and was not considered suitable for a further community based disposition’ (see at [16]). He was sentenced to seven months’ imprisonment.

    Issue/s: Some of the issues concerned –

    1. Whether the Magistrate erred in sentencing the appellant to a term of imprisonment.
    2. Whether the Magistrate erred in failing to suspend the term.
    3. Whether the Magistrate erred in failing to backdate the sentence of imprisonment.

    Decision and Reasoning: The appeal was upheld in respect of ground 3 – the Magistrate erred by not backdating the sentence to give credit for time already spent in custody.

    1. The issue of imprisonment was decided in the context of s 61A of the Restraining Orders Act 1997 (WA), which provides for a presumption of imprisonment for repeat offenders under the Act. Hall J held that while there was no actual or threatened violence involved in the current or prior breaches, the appellant had deliberately refused the authority of the orders. See in particular at [46] – ‘Deliberate breaches of court orders or police orders made under the Act undermine the efficacy of such orders. Deterrence both personal and general must play a significant role when orders are breached. If those who are the subject of such orders believe that they can breach them without suffering any real consequence then there will be little incentive to be compliant.’
    2. The Court held that it was within the Magistrate’s discretion to refuse to suspend the sentence.

      Given error was demonstrated by the failure to backdate the sentence, it was appropriate to resentence the appellant. In that regard, Justice Hall took into account some further steps that the appellant had taken towards rehabilitation, including drug and alcohol programs. Given these circumstances and the time already spent in custody, the prison sentence was set aside and the appellant was fined $1500.
  • Weston v Cartmell [2015] WASC 87 (16 March 2015) – Supreme Court of Western Australia
    Bail’ – ‘Breach of bail’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Totality’ – ‘Trespass

    Charge/s: Trespass, Breach of bail (numerous counts).

    Appeal Type: Appeal against sentence.

    Facts: The appellant’s marriage with his wife (the complainant) ended. The complainant had purchased a new house and the appellant climbed the fence and walked around the property for some time. He had some property including vehicles at the house. The appellant then forced entry and was restrained by the complainant’s male friend who was at the home before police arrived. After being released on bail with conditions that he not contact or attempt to contact the complainant, he breached this bail by attempting to contact her via email 153 times. He also made 126 phone calls or text messages. These communications occurred while the appellant was living in New Zealand. The appellant and the complainant had shared business interests. The appellant also had an interest in the complainant’s home because part of the deposit for the home had been paid from a bank account in which the appellant had an interest. The prosecution accepted that many of the communications related to these business matters. A total effective sentence of 16 months’ imprisonment was imposed.

    Issue/s: Whether the total effective sentence did not bear a proper relationship to the overall criminality.

    Decision and Reasoning: The appeal was upheld. The appellant submitted that the sentence should have been suspended.

    Hall J noted that while the large number of breaches of bail made this offending serious, the personal circumstances of the appellant were exceptional. Given that many of the communications related to business issues, it is difficult to conclude that the communications were intimidatory. As his Honour noted at [39] – ‘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.’

    Furthermore, the evidence indicated that the conduct was out of character. The appellant had previous good character, a solid employment history, surrendered himself to police and fully cooperated. This indicated an acceptance of responsibility and remorse. He was at minimal risk of re-offending so specific deterrence was not significant. While general deterrence is important in sentencing breaches of bail and ‘Compliance is likely to be undermined if breaches are dealt with by derisory penalties’ (see at [43]), this did not mean that the term of imprisonment could not be suspended in this case. As such, the total effective sentence was suspended for 12 months.

  • Bropho v Hall [2015] WASC 50 (9 February 2015) – Supreme Court of Western Australia
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated common assault’ – ‘Breach of protective bail condition’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Women

    Charge/s: Aggravated common assault, breach of a protective bail condition.

    Appeal type: Appeal against sentence.

    Facts: The appellant, a male Aboriginal man, was in a domestic and family relationship with the female victim. The appellant and the victim had been drinking alcohol with three friends. Their two children were also present. The appellant took exception to a comment made by the victim about his behaviour towards one of her female friends. He grabbed the victim by the T-shirt, causing scratches to the side of her neck. They continued shouting at each other. The appellant punched the victim in the face, causing bruising and swelling to her left eye. The victim moved away but was followed by the appellant and he delivered a further blow to the side of her head. The appellant stopped hitting the victim after their two children told him to stop. The appellant was arrested and entered into a bail undertaking with protective conditions. He breached those bail conditions by attending and remaining at the home of him and the victim. The appellant was sentenced to 15 months’ imprisonment for the aggravated assault and 2 months’ imprisonment for the breach of protective bail condition, served cumulatively.

    Issue/s: One of the grounds of appeal was that the sentences imposed for the aggravated assault and breach of protective bail conditions were manifestly excessive.

    Decision and Reasoning: The appeal was allowed. The case represented a relatively serious example of the offence of common aggravated assault involving domestic violence, falling within the midrange of these types of cases (See [24]). It involved two circumstances of aggravation. First, the appellant was in a family or domestic relationship with the victim. Mitchell J provided:

    ‘The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner’ (See [16]).

    The second circumstance of aggravation was that children were present when the offence was committed. Mitchell J noted:

    ‘The facts of this case illustrate a tragic cycle of violence with which the courts are depressingly familiar. A person exposed to domestic violence in his early life goes on as an adult to perpetrate the violence to which he was exposed as a child, damaging members of his community in the same way he was damaged as a child. For that reason, the fact that the appellant's offence was committed in the presence of children was a significant aggravating factor’ (See [18]).

    However, following an examination of cases, Mitchell J held that cases where a sentence of 15 months’ imprisonment had been imposed involved a significantly greater level of violence than committed by the appellant here. The sentence was manifestly excessive (See [23], [35]-36]). The appellant was resentenced to an intensive supervision order.

  • The State of Western Australia v Carlino [No 2] [2014] WASC 404 (31 October 2014) – Supreme Court of Western Australia
    Battered woman syndrome’ – ‘Economic abuse’ – ‘Emotional abuse’ – ‘Evidence’ – ‘Expert testimony’ – ‘Following, harassing, monitoring’ – ‘Murder’ – ‘Opinion evidence’ – ‘Physical violence and harm’ – ‘Self-defence

    Charge/s: Murder.

    Proceeding: Application to adduce certain expert evidence.

    Facts: The accused and the deceased were both male. They lived together, but it was not a sexual relationship. The accused was the deceased's assistant and helped with the deceased's drug dealing activities. The accused admitted killing the deceased by shooting the deceased to the head while the deceased was sleeping. The main issue at trial was to be whether he acted in self-defence. The accused sought to call evidence of a psychologist regarding his state of mind. The psychologist was to give evidence, ‘that the accused was in a compromised mental state at the time as a result of being in an abusive relationship with the deceased. The accused is said to have felt powerless in relation to (the deceased), and to have thought that the only way out of the relationship was to kill (the deceased)’ (see at [2]). The State objected to the admission of this evidence on the basis that it was not a recognised psychological condition and that it was not analogous to cases falling within the ‘battered woman syndrome’ (BWS). The state further submitted that the matters to be the subject of the evidence from the psychologist were not outside the ordinary experience of jurors.

    The accused described himself as a ‘lackey’, the deceased as ‘possessive’ and that the deceased would threaten violence and control his ‘movements, communications and finances’. The psychologist’s evidence was that the relationship was consistent with the learned helplessness associated with BWS. The psychologist also stated that the syndrome was not confined to females or sexual relationships, and that this relationship was of a sufficient duration to be consistent with the syndrome.

    Issue/s: Whether the evidence of the psychologist should be admitted.

    Decision and Reasoning: The application was refused. This did not preclude a claim to self-defence, but was relevant to the issue of whether the accused believed his actions were necessary. Hall J held that the psychologist’s evidence was opinion evidence and admissible only if it met the requirements of expert evidence (see at [15]). His Honour noted that BWS is widely accepted as an area of specialised knowledge, but that it is important to pay close attention to what is actually recognised as BWS. He referred to Osland v The Queen (1998) 197 CLR 316 where Kirby J stated that the syndrome should extend beyond females as victims. Hall J held that this relationship differed from a typical ‘battering’ relationship – it was not a long term marriage relationship and was not characterised by ‘recognisable cycles of tension, violence and reconciliation’ (see at [25]). While there were similarities in the ‘assertion of increasing control, emotional volatility and increasing feelings of helplessness’ (see at [25]), his Honour held that the differences between these circumstances and other BWS cases required that, ‘the application of the syndrome to a situation like this is accepted by the majority of experts in the field of psychology’ (see at [26]). There was no evidence of majority acceptance of experts. As such, the evidence was inadmissible. Evidence of the violent and controlling behaviour of the deceased could still be considered by the jury in order to assess whether the accused’s actions were necessary to prevent the deceased from harming him (see at [31]).

  • Taylor v The State of Western Australia [2014] WASC 292 (19 August 2014) – Supreme Court of Western Australia
    Assault causing bodily harm’ – ‘Bail’ – ‘Physical violence and harm

    Appeal type: Bail application.

    Facts: On 4 October 2013, the applicant was charged with assaulting his former de facto partner. He was released on bail. The bail undertaking included a condition that he was not to contact or attempt to contact the victim by any means. While on bail, the applicant committed a further assault on the victim causing her bodily harm. He was arrested and charged with that assault and with failing to comply with a protective bail condition. Bail could not be granted again unless the applicant showed there were exceptional reasons he should not be kept in custody. The applicant’s criminal history showed that he had two prior convictions for breach of protective bail conditions in 2012 and 2013. The applicant was also alleged to have breached protective bail conditions on another occasion but this had not been the subject of prosecution.

    Issue/s: Whether there were exceptional reasons why the applicant should not be kept in custody.

    Decision and Reasoning: The application for bail was refused. There were not exceptional reasons why the applicant should not have been kept in custody. The applicant had breached protective bail conditions on multiple occasions in the past. While the victim had a conviction for assaulting the applicant, this did not justify the applicant’s failure to comply with protective bail conditions (See [29]-[30]). Although the prosecution case against the applicant could not be said to be overwhelming, it could not be said to be particularly weak. ‘A less than overwhelming case does not provide exceptional reasons to grant bail. If the prosecution case was particularly weak one or there was a high probability of acquittal the position might be different: Bertolami v The State of Western Australia [2009] WASC 269’ (See [32]). Based on the offending conduct, the judge could not accept the applicant’s argument that if he was convicted and imprisoned, the minimum term of any such sentence would be likely to be equal to or less than the time already spent in custody (See [33]). There was a risk that the applicant would commit further offences if released on bail, in particular by breaching any protective bail condition in regard to contacting the victim (See [34]).

  • Mills v Hawley [2013] WASC 261 (3 July 2013) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Following, harassing, monitoring’ – ‘Sentencing

    Charge/s: Breach of violence restraining order.

    Appeal Type: Appeal against sentence.

    Facts: The appellant had previously been in a relationship with the protected person and they had a 2-year-old child. He sent about 49 text messages and made 31 phone calls on a daily basis in breach of a violence restraining order (VRO). He claimed he was attempting to make arrangements to see his child. He had one prior conviction for breaching the same VRO. The prosecution accepted that the text messages were not threatening and the phone calls were not answered. However, the seriousness of the offence was increased because it occurred immediately after he had been dealt with by the Court for the previous breach. The appellant pleaded guilty to a charge of breaching a VRO. He was sentenced to 7 months’ imprisonment, suspended for 12 months.

    Issue/s: Whether the Magistrate erred in imposing a sentence of imprisonment and failing to reduce the sentence to take account of the appellant’s early plea of guilty.

    Decision and Reasoning: The appeal was upheld.

    Under s 61A of the Restraining Orders Act 1997 (WA), ‘if a person has committed and been convicted of at least two offences within the period of two years before the conviction of the offence for which he or she is to be sentenced, the person is to be sentenced for a 'repeated breach'’ (see at [12]). This did not apply to the appellant. As such, under s 6(4) of the Sentencing Act 1995 (WA) the Court cannot impose a sentence of imprisonment unless it concludes that it is justified by the seriousness of the offence or the protection of the community. This offence was serious (see at [4]). However, Allanson J concluded that a sentence of imprisonment was not the only appropriate penalty. His Honour noted (at [19]) various mitigating factors including the appellant’s youth ([19]) and the fact that no violence nor threats of violence were involved in the offending. Therefore, it could not be said that the protection of the community or the protected person required a sentence of imprisonment. The Magistrate also did not refer to the plea of guilty as a mitigating factor. The sentence was set aside and sent back to the Magistrates’ Court for re-sentencing and his Honour stated at [23] that a community based order may be appropriate.

  • Brown v Bluett [2013] WASC 189 (14 May 2013) – Supreme Court of Western Australia
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Breach of restraining order’ – ‘Physical violence and harm’ – ‘Repeated breaches of a restraining order’ – ‘Temporary protection order

    Charge/s: Aggravated assault causing bodily harm, breach of violence restraining order (x 3).

    Appeal type: Appeal against sentence.

    Facts: A violence restraining order was obtained by the female victim against the male, Aboriginal appellant. This included conditions prohibiting the appellant from communicating or attempting communication with the victim, from remaining on premises where the victim lived or worked and from remaining within 10 metres of the victim. The first breach of the restraining order occurred at a Native Title meeting where the appellant spoke to the victim. He also assaulted her by hitting her on the back of the head with a jaffle iron. The second breach occurred when the appellant went to the victim’s home and persuaded her to take him to Meekatharra. Finally, the appellant breached the order by ringing the victim on 52 occasions and also by persuading the victim to drive him to Bondini Reserve. In sentencing, the magistrate noted that the appellant had pleaded guilty immediately and was entitled to a reduction of a maximum of 25% as provided for by s 9AA of the Sentencing Act. Her Honour took the maximum penalties as a starting point and reduced these by 25% in imposing sentences. This resulted in a head sentence of 27 months’ imprisonment.

    Issue/s: The magistrate erred in the application of the Sentencing Act in particular by construing it as requiring a (potentially) significant increase in the sentence that would otherwise have been imposed and a starting point being the maximum penalty open to the court.

    Decision and Reasoning: The appeal was allowed. The respondent conceded that the magistrate's interpretation of s 9AA was erroneous and that the appeal ought to be allowed. That concession was properly made. The magistrate’s application of the Sentencing Act was erroneous and the error resulted in a sentence beyond the range of sentences customarily imposed for offences of this type. The appellant was resentenced.

    In resentencing the appellant, Allanson J noted that a sentence of immediate imprisonment was the only penalty appropriate in light of repeated violations of a restraining order and one act of significant violence. His Honour provided:

    ‘The law is limited in the manner in which it can respond to domestic violence. One important part of that response is by the issue of violence restraining orders. It is essential that those orders are not ignored. When they are repeatedly breached, the need for general and individual deterrence will ordinarily outweigh subjective and other mitigating considerations’ (See [16]).

    The offence of assault was a serious example of its kind as it involved a blow to the victim’s head and was committed with an object capable of causing serious injury (See [17]-[18]). The breaches of the restraining order did not in themselves involve acts of violence but it was particularly serious that in each of the last two offences the appellant was breaching the order soon after appearing in court in relation to the first breach (See [19]). The appellant had made some attempt to turn his life around but the mitigating weight of this factor was limited by the nature of the offending and the need to emphasise the importance of complying with the restraining order (See [21]-[22]). Taking these factors into account and with the full benefit of the 25% reduction, Allanson J imposed a head sentence of 12 months’ imprisonment.

  • Hamlett v Whitney [2013] WASC 100 (22 March 2013) – Supreme Court of Western Australia
    Aggravated assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Temporary protection order’ – ‘Totality

    Charge/s: Breach of bail (x 2), breach of protective conditions.

    Appeal type: Appeal against sentence.

    Facts: The appellant was on bail for a charge of common assault in circumstances of aggravation namely, that the appellant was in a domestic relationship with the female complainant. The appellant’s bail was subject to a number of conditions including that he was not to contact or attempt to contact the complainant, he was not to approach within 20 metres of an address at which the complainant was living, and he was not to behave in a provocative or offensive manner to residents at that house. The applicant was subsequently charged with breach of protective bail conditions when he verbally abused and threatened the complainant at Centrelink offices. He was further charged with a number of offences of stealing and aggravated burglary and failed to appear in Court after being released on bail. He was charged with two breach of bail offences.

    The appellant pleaded guilty to the breach of protective bail conditions and the two other charges of breach of bail. In sentencing, the magistrate noted: ‘Protective bail is placed on people for a purpose and that is to protect the victim, the person who is protected by the protective bail; and people who breach protective bail, like people who breach restraining orders, in a manner that you did, that is, actually threatening the protected persons, in my view ought be sentenced to a term of imprisonment […] These three offences, in my view, show a total disregard for court orders. There really is nothing that can be said by way of mitigation in relation to this offending. Ms Svanberg has pressed upon me that when you breached your protective bail you were intoxicated, but being intoxicated may explain why you breached your protective bail and why you breached your normal bail undertakings but it doesn't excuse your behaviour. The fact of the matter is you were on protective bail for a reason and you breached it’ (See [17]). The appellant was sentenced to a total effective sentence of 6 months and 1 day.

    Issue/s: The appellant did not suggest that the 4-month sentence for the breach of protective bail conditions was excessive. The sentences of imprisonment for the other two offences were manifestly excessive. Further, the total effective sentence was disproportionate to the total criminality and therefore offends the totality principle.

    Decision and Reasoning: The appeal was refused. In light of the maximum penalties available, the seriousness of the offences, and the personal circumstances of the appellant the sentence imposed was not manifestly excessive. The total effective sentence was also not disproportionate to the total offending (See [35]).

  • Rowe v Gaunt [2013] WASC 90 (20 March 2013) – Supreme Court of Western Australia
    Breach of restraining order’ – ‘Expiration of restraining order’ – ‘Miscarriage of justice

    Charge/s: Breach of restraining order.

    Appeal Type: Appeal against conviction.

    Facts: An interim violence restraining order was granted which prohibited the appellant from approaching within 5m of any premises where the protected person lived or worked. This order was later made final. The appellant was charged with breaching the order by going to the house of the protected person and placing a letter in the letterbox. She pleaded guilty and was convicted. However, the police later became aware that the order had expired when the offence occurred.

    Issue/s: Whether the conviction should be set aside.

    Decision and Reasoning: The appeal was upheld. The Court set aside the conviction because the conviction amounted to a miscarriage of justice. Hall J noted the following at [13] –

    ‘I am compelled to note that this is the second occasion in recent times on which I have been called upon to set aside a conviction for breach of a violence restraining order where the alleged breach has occurred after the order has expired. See Topic v Lynch [2012] WASC 446. It is of course a necessary element of an offence under s 61 of the Act that there be a restraining order in force at the time the breach is alleged to have occurred. It is always possible that a protected person may complain to the police on the basis of a mistaken belief that a restraining order is still in force. Care must be taken to ensure that that is the case.’

  • Harrison v Hunter [2012] WASC 166 (30 April 2012) – Supreme Court of WA
    Aggravated assault’ – ‘Interests of child’ – ‘Perpetrator intervention program’ – ‘Sentencing’ – ‘Subsequent engagement in family violence programme

    Charge/s: Aggravated assault

    Appeal Type: Appeal against sentence.

    Facts: The appellant and complainant were in a relationship for almost three years. They had a daughter. The complainant and daughter were financially and emotionally dependent on the appellant. The appellant returned from work intoxicated. An argument developed. The appellant struck the complainant to the face with a closed fist. No injuries were caused by the blow. The matter was resolved by a plea of guilty, at the earliest reasonable opportunity. When his Honour, Chief Justice Martin, considered the seriousness of the offence he noted at [27]:

    “The offence committed by the appellant in this case was serious. Domestic violence is an offence that rightly provokes community condemnation and rightly requires courts to respond to the community abhorrence of such offending by imposing sentences that are commensurate with the seriousness with which the community rightly regards this type of offence.”

    Despite those observations, his Honour considered that the 8 month term of imprisonment could be suspended for 12 months for a number of reasons. Firstly, it was in the best interests of the complainant and her child, cohabiting with the appellant, that he not be imprisoned: [33]. Secondly, the appellant had attended eight sessions of a family violence programme: [38]. His Honour stated that the offence was not in the upper range of seriousness: [15].

  • Kjellgren v Cameron [2012] WASC 80 (1 March 2012) – Supreme Court of Western Australia
    Aggravated assault occasioning bodily harm’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse

    Charge/s: Aggravated assault occasioning bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in a relationship with the complainant for about four months. The appellant was intoxicated and following a dispute, he was arrested and ordered not to approach the caravan park where the complainant was residing. After being released, he knocked on the door of the complainant’s caravan and verbally abused her, threatened her and punched her to the face multiple times. He then knocked her to the ground. He stopped her from escaping. She was left with serious injuries. He was sentenced to two years’ imprisonment and was made eligible for parole.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld.

    McKechnie J acknowledged the seriousness of the offence especially considering it amounted to a deliberate breach of a police order. This type of violence to women cannot be condoned and as such a sentence of immediate imprisonment was appropriate. However at [11]-[16], his Honour considered various comparable cases and came to the conclusion that the sentence was manifestly excessive. His Honour especially had regard to Messiha v Plaucs [2012] WASC 63 where it was held that an 18-month sentence for aggravated assault occasioning bodily harm (including other charges) was disproportionate to the overall criminality of the offending. Nevertheless, general and specific deterrence and the significant injuries that the complainant suffered remained important considerations. The appellant was re-sentenced to 15 months’ imprisonment with parole eligibility.

  • Messiha v Plaucs [2012] WASC 63 (24 February 2012) – Supreme Court of Western Australia
    Aggravated assault’ – ‘Aggravated assault occasioning bodily harm’ – ‘Character’ – ‘Criminal history’ – ‘Exposing a child’ – ‘People affected by substance abuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Threat to injure’ – ‘Totality’ – ‘Victim

    Charge/s: Aggravated assault, threat to injure, three counts of aggravated assault occasioning bodily harm (circumstances of aggravation: that the appellant was in a family or domestic relationship with the victim).

    Appeal Type: Appeal against sentence.

    Facts: The appellant engaged in a verbal argument with his wife. The appellant punched and grabbed the side of her face. She attempted to escape, at which point he threatened to kill her, grabbed her around the neck and stabbed her with a screwdriver. She feared for her life. The appellant then bit her twice and told his son who was attempting to stop the assault to get away several times. The appellant had a serious drug problem and the offending occurred while he was under the influence of drugs. He had prior convictions for violent offences but they did not involve domestic violence. He was sentenced to an aggregate term of 18 months’ imprisonment for all offences.

    Issue/s: One of the issues concerned whether the total aggregate sentence infringed the totality principle.

    Decision and Reasoning: The appeal was upheld.

    The Court firstly noted that the offending was sustained, premediated and ferocious. It occurred in the family home in the presence of two young children.

    The appellant submitted inter alia that the sentences should have been made concurrent because they constituted a single course of conduct. The Court rejected this argument and held that the so called ‘one transaction rule’ is a general rule and the operative question is whether the total effective sentence properly reflects the overall criminality involved. In this case, the course of conduct had distinct features which increased in seriousness over time so it was open to the Magistrate to impose some cumulative penalties.

    The appellant also submitted that the Magistrate erred by giving the appellant’s criminal record undue weight, given it did not involve domestic violence. This argument was rejected – the Magistrate correctly stated that the record showed a lack of mitigation in that the appellant did not have past good character. Hall J was of the view that there is little merit in distinguishing past violent offending as irrelevant if it is not committed in domestic circumstances. These offences do have relevance, not necessarily as showing a tendency but in showing ‘an absence of mitigation as to past good character’ (see at [31]).

    Another issue concerned whether the Magistrate erred by not having sufficient regard to the appellant’s longstanding relationship with his wife, the fact they have dependent children as well as his wife’s wishes. His wife filed an affidavit on appeal indicating that the appellant’s imprisonment was causing her extreme hardship. Her mortgage was in arrears. If the appellant was released, she claimed that there would be the prospect that the appellant would obtain employment so the arrears could be paid. The appellant and his wife were migrants and she had no wider family in Australia. The Court referred to McLure P’s remarks in The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) and held that the wishes of victims of domestic violence for reconciliation has to be seen in context. Offenders cannot expect leniency because their punishment impacts others. While this issue could be relevant in some cases, it should not have been given much weight in this case.

    The appellant also submitted that the fact he had successfully completed three community based orders should have been afforded more weight by the Magistrate. This argument was rejected – the Court held that the mitigatory effect of past completion of community orders can be diminished by reoffending. Reoffending can put into doubt whether the order was successful in bringing about attitudinal and behavioural change (see at [37]).

    In relation to the presence of the children at the time of the offending, while it was not included as a formal circumstance of aggravation, it was open to take these facts into account (see at [41]).

    The Court then noted that there was no history of domestic violence but the offending was serious and justified immediate imprisonment. In applying comparable cases, the Court concluded that the aggregate sentence was particularly high and did not bear a proper relationship to the overall criminality of the offending. In noting that the appellant had apologised, expressed remorse, expressed a wish to assist his wife with the mortgage and children and that he had his wife’s support, the total aggregate sentence was reduced to 15 months’ imprisonment with eligibility for parole.

  • Musgrove v Millard [2012] WASC 60 (22 February 2012) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Double jeopardy in sentencing’ – ‘Double punishment’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Unlawful installation of a tracking device

    Charge/s: 113 offences including: Stalking, unlawful installation of a tracking device, breach of violence restraining order (104 counts), breaching a protective bail condition (7 counts).

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant was served with an interim restraining order prohibiting him from communicating with his former partner in any way. In breach of this order, he attended her address and/or workplace, sent her a number of text messages and unlawfully installed a tracking device on her vehicle. This conduct also comprised the stalking offence. Later, the applicant called his for partner 80 times. The Magistrate noted that there were a significant number of offences committed over an extended period which had a considerable impact on the victim. A total effective sentence of 16 months’ imprisonment was imposed which comprised of 8 months’ imprisonment for stalking, 4 months’ imprisonment for unlawfully installing the tracking device (to be served cumulatively on the sentence for stalking) and 4 months’ imprisonment for 15 convictions including breaching bail conditions and the restraining order. All the other convictions for breaching the restraining order were to be served concurrently for the stalking offence.

    Issue/s: Whether the Magistrate erred in making the sentence for unlawfully installing a tracking device cumulative upon the sentence imposed for stalking - the conduct which formed the basis of the stalking charge including the installation of the tracking device, such that a cumulative sentence resulted in the applicant being punished twice for the same conduct.

    Decision and Reasoning: Leave was granted and the appeal was upheld.

    The Court noted the ‘complexities’ involved in this issue and found it was not necessary to be resolved directly because of the application of the ‘common elements principle’ which states ‘when two offences of which an offender stands convicted contain common elements… it would be wrong to punish that offender twice for the commission of the elements that are common’ (see, for example Pearce v The Queen (1998) 194 CLR 610). This principle applied directly to this case. The facts indicated that the conduct which formed the basis of the tracking device charge was the same conduct, ‘which was part of the conduct relied upon to support the stalking charge’ (see at [40]). This falls directly within the common elements principle.

    The Court found that there was a substantial miscarriage of justice caused by this error. The application of the common elements principle means that there could have been no additional punishment for the unlawful installation of the tracking device. As such, the 4-month sentence for the surveillance device offence was made concurrent, which resulted in the overall sentence being reduced to 12 months.

  • Stokes v Auckland [2012] WASC 2 (10 January 2012) – Supreme Court of Western Australia
    Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘substance abuse’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The appellant, (an Aboriginal man) engaged in an argument with his de facto partner. He punched her in the head multiple times until she fell over. He dragged her by the hair to a nearby tap to wash the blood off her. The appellant was very intoxicated at the time. He had a significant history of alcohol and drug abuse and violence including prior convictions for violent offences against the complainant. In fact, the offending was committed while he was subject to three suspended sentences relating to offences committed against the complainant. The complainant wished to continue her relationship with the appellant and at one stage indicated that she did not want to proceed with the charges. However, the appellant pleaded guilty at an early stage and was sentenced to 16 months’ imprisonment. He was also re-sentenced for the suspended sentences which resulted in a total effective sentence of 22 months’ imprisonment.

    Issue/s: Some of the issues concerned –

    1. Whether the plea of guilty was made under duress and did not reflect his acceptance of the facts alleged by the prosecution.
    2. Whether the sentence of 16 months for the latest assault was manifestly excessive and whether the total effective sentence was disproportionate to the overall criminality of the offending.

    Decision and Reasoning: The appeal against conviction and sentence was dismissed.

    1. This argument was dismissed – see at [23]-[32].
    2. Hall J accepted the Magistrate’s conclusion with respect to the seriousness of the appellant’s conduct. His Honour then noted that the attack was ‘prolonged’, instigated by the appellant and aggravated by the fact that it was committed notwithstanding previous court orders imposed for similar offending. This showed a disregard for the law and a need for a personal deterrent. Hall J noted that other than the early plea of guilty, there was little by way of mitigation. Furthermore, the fact that the appellant was intoxicated when the offence was committed was not mitigatory, as the appellant was ‘acutely aware that alcohol was a risk factor in respect of his past offending behaviour’ (see at [41]). In relation to the complainant’s wishes for reconciliation, his Honour noted McLure P’s remarks in The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) and held that, ‘An otherwise appropriate penalty should not be reduced on account of an expression of willingness on the part of the complainant, for whatever reason, to forgive the offender and continue a relationship with him’ (see at [43]).

      As such, the Court held that while the one-month sentence was at the higher end of the range for offences of this kind, it was within the Magistrate’s discretion, having regard to the seriousness of the offence and the need for personal and general deterrence. In relation to totality, the Court held that the earlier offences were separate and unrelated to the latest assault. It was appropriate to activate these suspended sentences and orders of cumulation did not make the total effective sentence disproportionate to the overall criminality of the offending.
  • Corrigan v Kirkman [2011] WASC 254 (11 July 2011) – Supreme Court of Western Australia
    Aggravated common assault’ – ‘Breach of protective bail conditions’ – ‘Breach of violence restraining order’ – ‘Physical violence and harm’ – ‘Temporary protection order’ – ‘Totality

    Charge/s: Aggravated commons assault, breaches of violence restraining orders, breaches of protective bail conditions.

    Appeal type: Appeal against sentence.

    Facts: The offences related to a female complainant, with whom the appellant had been in a domestic relationship with. The appellant committed 29 breaches of a violence restraining order which prohibited the appellant, amongst other things, from communicating with the complainant. He did so by communicating with her by mobile phone (the ‘VRO offences’). He also committed four offences of breach of protective bail conditions by being 50-100 metres of the complainant on three occasions and by sending her a text message on one occasion (the ‘bail offences’). Finally, the applicant committed one offence of common assault in circumstances of aggravation at the same time as one of the bail offences. The magistrate sentenced the appellant to a total effective term of 12 months’ imprisonment, made up as follows: on aggravated assault 8 months’ imprisonment, one of the bail offences 4 months’ imprisonment (concurrent), 2 of the bail offences 4 months’ imprisonment (cumulative), one of the bail offences 2 months’ imprisonment (concurrent), and VRO offences 6 months’ imprisonment concurrent.

    Issue/s: One of the issues was whether the total sentence was contrary to the first limb of the totality principle.

    Decision and Reasoning: The appeal was allowed. The total effective sentence in this case was disproportionate to the overall criminality of the offending behaviour. The aggravating circumstances in respect of the assault offence, i.e. the breaches of the VRO and protective bail conditions, called for concurrency between the sentence on that offence and all other sentences. There should have been partial concurrency or a reduction in the length of sentence to avoid multiple punishment for these acts (See [97]-[99]).

  • Isenhood v Green [2011] WASC 70 (10 February 2011) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Deterrence’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Hearsay’ – ‘People affected by substance abuse’ – ‘Prejudicial material in victim impact statement’ – ‘Programs for perpetrators’ – ‘Sentencing’ – ‘Threats to injure’ – ‘Victim impact statement

    Charge/s: Breach of violence restraining order, making threats to injure.

    Appeal Type: Appeal against sentence.

    Facts: The complainant was the ex-partner of the appellant’s current partner. There was one daughter of that relationship. The appellant’s partner remained principally responsible for the welfare of the daughter. This meant that the appellant and the complainant often had contact with each other. Events at the complainant’s home prompted the complainant to seek a violence restraining order (VRO) on behalf of his daughter against the appellant, to prevent the appellant from committing an act of abuse against his daughter and from ‘behaving in a way that could reasonably be expected to cause fear that the child will be exposed to an act of family and domestic violence’ (see at [4]). The complainant then later obtained another VRO which prevented the appellant from communicating in any way with him. The appellant then made repeated telephone calls to the complainant and threatened to kill him and his daughter, which constituted both the breach and threat to injure charges. He was sentenced to 12 months’ imprisonment on each of the charges, to be served concurrently.

    Issue/s:

    1. Whether the sentence was manifestly excessive.
    2. Whether the Magistrate erred by taking into account hearsay and irrelevant material in the victim impact statement.
    3. Whether the Magistrate erred by taking into account prior property damage offences in concluding that the appellant has the potential to act violently in the future.

    Decision and Reasoning: The appeal was upheld in respect of issues one and two.

    1. Firstly, Jenkins J noted that the breach offence was not at the upper range because it did not involve any physical contact or actual violence. However, it was not trivial and included a threat of actual violence. Furthermore, there were no significant mitigating factors – the appellant had six prior convictions for breaching a VRO, was not remorseful and the previous penalties imposed had clearly not been effective as a personal deterrent. Notwithstanding, there were no attempts to carry through with the threats and no indication that the appellant intended to do so. Also, the appellant was no longer in a relationship with his partner and had ceased contact with the complainant’s daughter.
    2. The victim impact statement detailed the history of the dispute between the appellant and complainant from the complainant’s point of view. The appellant described it as ‘inflammatory’ and Jenkins J agreed with that description. The appellant was not given an opportunity to respond to the matters in the statement. The respondent conceded that the Magistrate should not have taken these matters into account. The Magistrate needed to make clear that these matters were not taken into account.
    3. Jenkins J held that it was ‘drawing too long a bow’ to suggest that the appellant’s violent attack on an ATM machine was reason to believe that he may attack people in the future. However, this of itself was not cause to allow the appeal as no substantial miscarriage of justice occurred.

      The appellant was re-sentenced to a 12-month intensive supervision order which included programs to address anger management and alcohol abuse.
  • Morgan v Kazandzis [2010] WASC 377 (10 December 2010)– Supreme Court of Western Australia
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault causing bodily harm’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Pregnancy’ – ‘Sentencing’ – ‘Suspended sentence’ – ‘Vulnerable groups’ – ‘Women

    Charge/s: Aggravated assault causing bodily harm (x 2).

    Appeal type: Appeals against conviction and sentence.

    Facts: One of the appeals concerned two occasions where the appellant, an aboriginal man, unlawfully assaulted the victim who he was in a family and domestic relationship with. They were living at the Oombulgurri Aboriginal Community, and the victim was pregnant to the appellant. On both occasions, the victim, bleeding, with multiple injuries to her face and head, sought assistance from the police at the police facility. The victim told the police she was afraid of the appellant and wanted to get away from Oombulgurri. The police arranged for an aeroplane to take the victim to another centre for a time. The appellant was sentenced to 8 months’ imprisonment and 15 months’ imprisonment on each charge respectively. In light of the nature and seriousness of the offences, the Magistrate determined an immediate sentence of imprisonment was required.

    Issue/s: Some of the grounds of appeal included –

    1. The learned magistrate erred by failing to suspend the terms of imprisonment imposed, when:
      1. the learned magistrate failed to give consideration to whether the terms ought to be suspended; and
      2. a suspension of the sentence was open in all of the circumstances.

    Decision and Reasoning: The appeal was dismissed. These were serious offences committed by the appellant, who had two recent convictions of aggravated assault causing bodily harm. The violent conduct towards the victim was repeated less than five weeks later and the victim had a well-founded fear of the appellant. The victim was vulnerable as she was much younger than the appellant, had been in a relationship with him and was pregnant (see at [69], [72]).

    ‘Violent treatment of women in this fashion cannot be tolerated anywhere in the State, but it is of particular importance that in isolated communities such as Oombulgurri that the punishment of an offender who commits such offences in a short space of time should be such as to demonstrate to all members of the community that that conduct is unlawful and that effective punishment will be imposed in order to deter the general community from the use of violence. Specific deterrence of the individual offender was, in this case, also a necessary and essential ingredient of the sentence’ [72].

    A longer term of imprisonment was warranted on the second offence because it was more serious in that it was a repetition of the same unlawful conduct, and it was an unrelated offence.

  • Baudoeuf v Venning [2010] WASC 322 (17 November 2010) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Extenuating circumstances’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Suspended sentence

    Charge/s: Breach of violence restraining order, breach of suspended imprisonment order.

    Appeal Type: Appeal against sentence.

    Facts: The appellant (aged 24) was the subject of a violence restraining order (VRO) in favour of the protected person (aged 52). They had been living together in an ‘off and on’ de facto relationship for about 18 months. The protected person had unsuccessfully applied to the Magistrates’ Court to have the order withdrawn. The breach occurred when the appellant had been living with the protected person for three days. An argument occurred, the police were called and the appellant was arrested. There was a history of violence in the relationship and the order had been breached four times in the past. According to a psychiatric report, the appellant presented with a ‘schizo-affective disorder, an ADHD history, personality disorders and mental retardation’ (see at [11]). Despite the orders being in place, it was the protected person who repeatedly invited the appellant back to live with her which constituted the repeated breaches. The breach of the VRO also constituted a breach of a suspended imprisonment order which had been imposed in relation to a prior breach in respect of the same protected person. He was sentenced to 7 months’ imprisonment for both offences, to be served concurrently.

    Issue/s: Whether the Magistrate erred in imposing immediate sentences of imprisonment.

    Decision and Reasoning: The appeal was upheld.

    At trial, the Magistrate concluded that the psychiatric evidence did not support a conclusion that the appellant’s mental illness or disturbance led to the commission of the offences. She concluded that the ‘non-aggressive resumptions of cohabitation’ (by the appellant) were ‘part of a course of conduct over which the appellant could and should have exercised restraint and control in obedience to the VRO’ (see at [42]). Em Heenan J held that this amounted to an error of fact and that his breaches could ‘to a material degree’ be explained by his history of mental illness (see at [44]). The appellant’s mental health problems, in combination with significant personal stress related to his relationship with the victim ‘impaired his ability to exercise appropriate judgment and his ability to appreciate the wrongfulness of his conduct, so contributing causally to the commission of the offence’ (see at [48]). This reduction in culpability could lead to a reduction in the severity of the sentence and this was not sufficiently taken into account by the Magistrate. The appellant was re-sentenced as follows – no punishment was imposed in relation to the earlier breach. A conditional period of suspended imprisonment for 7 months (wholly suspended for 9 months) was imposed for the later breach.

  • Lutey v Jacques [2010] WASC 78 (28 April 2010) – Supreme Court of Western Australia
    Breach of violence restraining order’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Following, harassing, monitoring’ – ‘People living in regional, rural and remote communities’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Threat of self-harm

    Charge/s: Breach of a violence restraining order (VRO).

    Appeal Type: Appeal against sentence.

    Facts: The appellant pleaded guilty to three counts of breaching a VRO. Only the second count was the subject of the appeal. The appellant’s relationship with the complainant had recently ended. He was served with a VRO which prohibited him from contacting her by any means and from entering or being within 200m of any place where she lived or worked. The second breach of the order (the subject of the appeal) occurred when the appellant attended the Karratha Women’s Refuge (where the complainant was staying) and wrote in the dust on the rear window of her car – ‘I am a dead man walking’. He later returned to rub the message off. The appellant had no relevant criminal history. He was sentenced to 8 months’ imprisonment, suspended for 2 years.

    Issue/s:

    1. Whether the Magistrate erred by failing to adequately consider sentences other than imprisonment.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld in respect of issue 2.

    1. The Court held that the Magistrate did sufficiently have regard to the possibility of other sentencing options, such as an intensive supervision order or a fine.
    2. Simmonds J firstly noted that the maximum penalty for breaching a restraining order had been increased which indicates Parliament’s intention is that the courts regard these offences more seriously. At [53]-[61], his Honour provided a summary of relevant authorities. He stated at [61] that these authorities (decided before the increase in penalty) take the following approach in sentencing breaches of VROs –

    ‘The approach is one recognising that the Act is social legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135 [13] (Miller J); it is essential the courts ensure their orders are not ignored: Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999) (Kennedy J) 10; and violence restraining orders are notoriously difficult to enforce, and the need for general and individual deterrence will ordinarily outweigh subjective or other mitigating considerations: Dominik v Volpi [2004] WASCA 18 [80] (Roberts-Smith J).’

    However, this does not mean that a custodial sentence will be appropriate in all cases. Simmonds J found that there are various circumstances which made this offence of a less serious kind. The appellant was surprised that the relationship had ended. There was no indication of any ‘offence or serious misconduct’ that led to the making of the VRO. Furthermore, the appellant made no attempt to enter the refuge and there was no threatening or intimidatory conduct. However, the complainant had recently been hospitalised for heart treatment. The respondent submitted that this as well as the fact that she was living in a refuge was relevant to assessing the seriousness of the offence. Simmonds J found that while these factors would make the offence more serious, evidence of the subjective impact on the complainant would be needed (see at [70]).

    The respondent also submitted that the message left on the car might indicate a potential for the appellant to self-harm. His Honour then referred to the equivalent Victorian legislation which defines ‘emotional abuse’ (see at [71]) and accepted that a threat of self-harm intending to or producing the effect of causing distress or hurt to someone is a factor capable of aggravating the offence of breaching a VRO. However, in this case there was no evidence pointing to a threat of self-harm made with that intention or effect. Furthermore, the fact that the appellant’s counsel referred to the protected person as the ‘complainant’ at trial did not of itself show that she suffered distress or hurt (see at [72]). In fact, the Court accepted that this potential for self-harm indicated the presence of a mental condition which contributed to the offending, notwithstanding the absence of a report from any mental health professional. This lessened the weight to be assigned to general and specific deterrence (see at [93] – [94]).

    The respondent submitted that the offences occurred in the remote Pilbara region which had the second highest rates of violence against women in the state. There was data before the Court indicating that remote areas have about five times the rate of domestic violence compared to capitals. His Honour responded to this submission at [81] –

    I accept without deciding that I can take judicial notice of these matters, and that I should regard them as going to the prevalence of offences of domestic violence to which the Restraining Orders Act is part of the legal response. On the relevance of the prevalence of offending of a particular type, see Yates v The State of Western Australia [2008] WASCA 144 [55] (Steytler P), [94] (McLure JA). I also accept without deciding that sentences for the same offending committed in different parts of the state may be affected by differences in the prevalence of that offence in those parts of those magnitudes.’

    This could result in the offence being viewed more seriously than otherwise. However, given that there was no element of physical threat or intimidation, the offence remained less serious (see at [82]). The Court held that the main mitigating factor was the appellant’s plea of guilty. Given this and the mental condition as discussed above, the Court concluded that the sentence was manifestly excessive and stated that a community based order was likely to be appropriate.

  • Paskov v Hull [2008] WASC 163 (28 July 2008) – Supreme Court of Western Australia
    Aggravated assault occasioning bodily harm’ – ‘Deterrence’ – ‘Double jeopardy in sentencing’ – ‘People affected by substance abuse’ – ‘Physical violence and harm’ – ‘Proximity of offences’ – ‘Sentencing’ – ‘Totality

    Charge/s: Two counts of aggravated assault occasioning bodily harm (aggravating factor: that the applicant was in a domestic relationship with the victim), escaping from lawful custody, failure to comply with bail conditions.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant had an argument with the complainant (his de facto partner). The applicant then pushed the back of her head into a window which caused the window to smash and the complainant to fall on the ground. He then dragged her out of a door and kicked and punched her multiple times which caused her head to hit a railing, at which point she passed out. The applicant then evaded arrested for some days. After being granted bail, he phoned the complainant in breach of protective bail conditions. The second assault occurred 6 months later. The applicant became aggressive and dropped the complainant onto the ground and kicked her repeatedly in the rib area. He also used a ring on his left hand to gouge her left eye, resulting in a bruised and swollen eye and a cut to the eyeball. He had long standing problems with drug and alcohol abuse. His criminal history included a violent offence in a previous de facto relationship. He was sentenced to an effective term of 2 years and 2 months’ imprisonment. The sentences for the escaping custody and second aggravated assault offences were made cumulative.

    Issue/s:

    1. Whether the sentence was manifestly excessive.
    2. Whether the Magistrate erred in making the sentences for the second count of aggravated assault occasioning bodily harm and escaping custody cumulative because the offences occurred on the same day.

    Decision and Reasoning: Leave to appeal was refused.

    1. Hasluck J noted that the offences were particularly serious. The Magistrate gave appropriate consideration to this as well as to personal and general deterrence. This was, ‘apt in respect of a severe attack on a defenceless woman who was in a relationship with the applicant, especially when the attacks were sustained and persistent’ (see at [52]). As such, the sentences could not be described as manifestly excessive.
    2. The Court held that there was a separation in time between the offences and they were of a different kind. Hasluck J referred to the ‘common elements principle’ and acknowledged that it would be wrong two punish an offender twice where ‘there is essentially one transaction or commonality is evident’ but that this did not arise on the facts (see at [51]).
  • Elliot v Blanchard [2007] WASC 289 (14 November 2007) – Supreme Court of Western Australia
    Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse

    Charge/s: Aggravated assault occasioning bodily harm (circumstance of aggravation: that the appellant was in a family and domestic relationship with the victim).

    Appeal Type: Appeal against sentence.

    Facts: The appellant was in an intimate personal relationship with the complainant after meeting on the internet. The appellant was intoxicated. An argument occurred and the appellant verbally abused the complainant. He then pushed her into a chair, threatened to kill her and grabbed her around the throat almost to the point of making her lose consciousness. He repeatedly slapped her face and choked her for several minutes. He threw her into a bed before dragging her by the arms into another room. The appellant then calmed down and stated that the complainant was free to leave but informed her that he was in possession of two firearms. The complainant made him dinner to pacify him and eventually managed to escape. The appellant later left a message on her phone in which he apologised for hitting her. She sustained various injuries including bruising and swelling. The appellant pleaded guilty and was sentenced to 12 months’ imprisonment with parole eligibility.

    Issue/s: One of the issues concerned whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld in respect of other issues such as the weight given to the plea of guilty and the time already spent in custody and the sentence was reduced by 1.5 months. In relation to the issue of manifest excess, the appellant emphasised the effect of alcohol and prescribed medication which he was taking as well as his prior good character, remorse and progress in rehabilitation. However, McKechnie J held that the Magistrate was not in error. While this was the appellant’s first violent offence, he had a number of previous offences of driving while intoxicated and on the day of the offending he had been fined $8000 for other offences which he had committed while intoxicated. The Magistrate did sufficiently take the appellant’s remorse into account. His Honour also noted that there is no offence of domestic violence. It is a term which ‘euphemistically describes serious criminal conduct’ (see at [10]). In this case, the offending was particularly serious. The sentence was appropriate, taking into account the public interest in general deterrence and just punishment.

  • Gilmour v State of Western Australia [2005] WASC 243 (8 November 2005) – Supreme Court of Western Australia
    Aggravated stalking’ – ‘Attempt to pervert the course of justice’ – ‘Bail’ – ‘Breach of violence restraining order’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Systems abuse’ – ‘Temporary protection order

    Charge/s: Aggravated stalking, breach of violence restraining order, attempt to pervert the course of justice.

    Appeal type: Appeal against refusal of bail.

    Facts: The decision concerned a bail application arising from three charged offences following the estrangement of the applicant from his second wife. The first alleged offence was the theft of mail from the complainant by the applicant. The second alleged offence was the commencement of a series of events said to amount to stalking. Some of these events included the applicant damaging the property of the complainant’s male friend, and the male friend obtaining a violence restraining order which the applicant subsequently breached. The applicant also became involved in an altercation with the complainant and she obtained a violence restraining order against him. The applicant stole items of women’s clothing from the complainant’s home, stole a security camera the complainant had installed, and was seen in the complainant’s backyard disguised with a mask and carrying a knife. The third offence occurred when the applicant asked his neighbours to provide him with a false alibi for the evening he was seen in the complainant’s yard wearing a mask and carrying a knife.

    Issue/s: Whether there were exceptional reasons why the applicant should not be kept in custody.

    Decision and Reasoning: The appeal was dismissed. The applicant had not made out exceptional reasons for the grant of bail in this case. The character of factors pointing towards the grant of bail, namely, hardship to the applicant, the applicant’s antecedents, and the likely time before trial, were not sufficient to establish exceptional reasons. This was particularly so when weighed against the strength of the State’s case, the adverse effects on protected persons of a release on bail, the concern for the failure of achievement of the purposes of protection orders in this case, and any difficulties in proving any future breach of a protective order (See [69]). See also Gilmour v The State of Western Australia [2008] WASCA 42 (28 February 2008).

  • Brown v Roe [2004] WASCA 210 (16 September 2004) – Western Australia Court of Appeal
    Breach of violence restraining order’ – ‘Conditions of orders’ – ‘Consent’ – ‘Temporary protection order

    Charge/s: Breach of violence restraining order.

    Appeal type: State appeal against dismissal of charges of violence restraining order.

    Facts: The protected person (the former de facto wife of the respondent) obtained a violence restraining order (VRO). The respondent was charged with three offences of breaching the VRO by communicating or attempting to communicate with the protected person. There was no dispute that the protected person had contact with the respondent during the period the VRO was in place. However, there was a dispute between the parties as to how many times there was contact and whether it was made with the consent of the protected person. The magistrate dismissed the charges because he considered all the evidence showed the protected person, by her actions prior to the contact alleged, had consented to the contact.

    Issue/s:

    1. The magistrate erred in law in finding that the protected person’s earlier course of conduct could create a continuing general consent entitling the respondent to thereafter breach the restraining order.
    2. The magistrate erred in fact in finding that the protected person consented to the respondent’s breaches of the restraining order.

    Decision and Reasoning: The appeal was allowed on ground 2. Counsel for the appellant argued that there could not be ‘continuing general consent’ given by a protected person to a person bound by a VRO. Barker J noted that this proposition was probably right ‘but whether or not consent has been given to any particular contact must be decided on the facts of each case’ (See [14]). In relation to ground 2, Barker J held that the magistrate erred in finding that the protected person consented to the respondent’s breaches. The evidence did not support such a conclusion (See [57]-[59]). Barker J further stated that, ‘it is not appropriate for a Court, while a VRO is in place, effectively to suspend the operation of a VRO by taking the view that a person protected is inclined to use the VRO as a "walking stick", as the Magistrate in this case suggested’ (See [46]). As the protected person explained, it was sometimes easier to tolerate the applicant’s presence and other times it was necessary to call police and enforce the terms of the order (See [42]).

    ‘It may be recognised that, in many circumstances, the continuing relationship between persons who were once in a close personal relationship will be strained, especially after a VRO has been granted by a Court. Nonetheless, a person who is bound by a VRO must take all appropriate steps to ensure that the terms of the order are complied with. It may well be that, on some occasions, by virtue of a course of conduct, a person bound by the order may feel entitled to approach physically or telephone a protected person. It may be that a prior course of conduct in some cases implies a consent to approach the protected person in that way, at least initially. But if the protected person makes it plain that she or he does not consent to that contact or that initial contact continuing, then it behoves the person bound by the order to back off and strictly comply with the order’ (See [44]).

Family Court of Western Australia

  • Arthur and Joyner [2015] FCWAM 197 (4 September 2015) – Family Court of Western Australia Magistrates Decisions
    Interim parenting orders’ – ‘Parenting orders and impact on children’ – ‘Physical violence and harm

    Proceedings: Interim parenting orders.

    Facts: The mother and father had two children. Both parties had criminal histories, mental health issues and problems with drugs and alcohol. The mother previously obtained an interim violence restraining order and a family violence offence had been reported to the police against the father but both matters were dropped. Before the hearing, the parenting arrangements were that the children live with the mother and spend supervised time with the father once a week. The father sought orders for unsupervised time with the children. At the end of the hearing, the Court made immediate orders for unsupervised time between the father and the children.

    Issue/s: What ought to be the extent of ongoing time between the children and the father?

    Reasoning/Decision: The strict and comprehensive guidelines for determining an interim parenting application were set out in Goode & Goode (2006) FLC 93-286 (see [27]). Magistrate Kaeser cited the Full Court of the Family Court’s decision in Banks & Banks [2015] FamCAFC 36, which provided guidance on the application of these principles. The Court in Banks stated at [48]-[50]:

    ‘It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial [emphasis in original]. The fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

    […]

    When it is obvious that the findings made as to some of the s60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it would be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the nondeterminative s60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors’.

    Magistrate Kaeser affirmed the orders that the father ought to have unsupervised contact with the children. The presumption of equal shared parental responsibility did not apply given that there was reasonable grounds to believe there had been family violence in the relationship. In these circumstances, the issue of equal time or substantial and significant time did not need to be determined. It was reasonable for the children to spend one overnight occasion with their father every fortnight (see [33]-[44]).

  • Sampson and North [2014] FCWA 75 (25 November 2014) – Family Court of Western Australia
    Court management’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Fair hearing and safety’ – ‘No contact orders’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Questioning witnesses’ – ‘Self-represented litigants’ – ‘Sexual and reproductive abuse’ – ‘Unacceptable risk

    Proceedings: Parenting orders.

    Facts: The father was verbally, physically and emotionally abusive towards the mother throughout their relationship. He assaulted her, forced her to have sex against her will, posted comments on Facebook referring to kill her and threatened to kill her. After their first child was born, a safety plan was put in place by the Department of Child Protection (DCP) specifying that the father have no unsupervised contact with the child. Their second child was born. The mother left the home with the children. She obtained a violence restraining order and a filed a Notice of Abuse with the DCP.

    Issue/s: What parenting orders were appropriate in the circumstances?

    Reasoning/Decision: This case raised significant issues relating to case management in circumstances where the father was a self-represented litigant. The father’s behaviour at trial soon was unmanageable, despite several requests from the court that he refrain from using foul language and despite warnings regarding his conduct. The mother was cross-examined by the father and kept her composure in extremely difficult circumstances (see [43]-[44]). Likewise, counsel for the mother questioned the father in a calm and measured way, despite his behaviour.

    Following threats made in the courtroom by the father, the Court took the unusual step of asking counsel for the mother and the Independent Children’s Lawyer to his chambers. He informed them that the trial could not safely proceed with the father present in court. Upon the resumption of the trial the Court made an order that the father attend trial from an alternative venue by way of video link (see [47]-[48]). The father’s behaviour did not improve throughout the rest of the hearing. The Court warned the father on several occasions that if he continued to use foul language the Court would switch on the mute button. After several disruptions, the Court activated the mute button (see [51]-[67]).

    Duncanson J stated here at [68] that: ‘The trial was conducted in the most difficult circumstances by reason of the father’s conduct, threats and appalling language. Both the ICL and counsel for the mother conducted themselves properly throughout and are to be commended for their perseverance and tolerance. An order sought by the mother was that the children spend no time with the father. In these circumstances it was important that the relevant evidence be provided to the court and properly tested by cross-examination to ensure that the Court is able to determine all issues and make orders which are in the best interests of the children. It was also important that the Court not allow the father to distract it from those issues’.

    In making parenting orders, Duncanson J held that the presumption of shared equal parental responsibility did not apply here because of family violence committed by the father. The mother was given sole parental responsibility for the children. It was also in the best interests of the children that they live solely in the care of their mother as the children would be placed at an unacceptable risk of harm in the care of their father.

    Finally, the Court held that the father have no contact with the children. This was appropriate in circumstances where ‘the children’s relationship with the father is not a meaningful one and as such will not be of benefit to them in the future. The children are at risk of both physical and psychological harm in the care of the father. His unrelenting denigration, criticism and vitriol towards the mother could undermine the children’s relationship with her and impact upon her parenting of the children in the future’ (see [184]-[197]).

  • Eddon and Eddon [2012] FCWA 104 (6 November 2012) – Family Court of Western Australia
    Emotional and psychological abuse’ – ‘Parenting orders and impact on children’ – ‘Relocation orders

    Proceedings: Relocation and parenting orders.

    Facts: The mother was born in England and the father was born in Australia. They had one child together. The mother sought orders to have sole parental responsibility for the child and permission to relocate the child to the UK. Her case revolved around the claim that the father’s sustained emotional abuse towards her transformed her from a strong, independent woman into a nervous wreck who needed the support of her family in the UK (see evidence [31]-[80]). The father sought equal shared parental responsibility and that the child live with the mother in Australia.

    Issue/s: What parenting and relocation orders were appropriate in the circumstances?

    Reasoning/Decision: First, in relation to the issue of allocating parental responsibility, Thackray CJ noted that the presumption in favour of shared parental responsibility did not apply because of the father’s violence. In the circumstances, it was appropriate for the mother to have sole parental responsibility for the child. His Honour was satisfied that the mother would seek to involve the father in any important decisions about the child and that she would make the right choices for the child (see [157]-[160]).

    Second, Thackray CJ turned to the issue of the planned relocation. His Honour noted that this case involved choosing the least bad alternative, as neither of the proposed outcomes was in any way satisfactory. If the mother relocated, the child would effectively be denied a meaningful relationship with his father, at least for some years until the father could afford to see him more regularly. If the mother was not permitted to relocate, there was a serious risk that she would fall into a state of depression, leading to the likelihood of a damaged attachment with her child. This would be extremely damaging to the child in the long term. In His Honour’s view, this factor was of far greater importance than the ‘significant, but not sever grief’, the child would face if not permitted to see his father regularly. The mother was therefore permitted to relocate to the UK to obtain support from her family to recover from the abuse she suffered.

    His Honour concluded at [166]-[167]:

    Although not a factor I need to take into account, there is potential for the outcome of cases such as the present to have a salutary impact on the behaviour of other parents. Unless the best interests of the child demand otherwise, it cannot reasonably be expected that one party to a relationship can behave in an abominable fashion, cause severe emotional harm to the other party, and then insist that they continue to live nearby so that they can continue to have a close relationship with their child. The strong emphasis given by our law to the importance of protection from violence would be undermined if any different message were conveyed.

    Notwithstanding his past conduct, it is impossible not to feel some sympathy for the father who I consider not only has gained some appreciation of the consequences of his behaviour, but wants to do the best he can for his son. His behaviour has been much improved, and he should be commended for that. But, unfortunately, as was put to him in cross-examination, it is a case of “too little, too late”. The damage has been done. All the father can do now, which I am satisfied he wants to do, is to make amends. It is not too late for him to be a good father, but he will have to achieve that by allowing the mother time to recover, which I am persuaded she can only do if she is permitted to go home’.

  • P and J [2010] FCWA 53 (9 March 2010) – Family Court of Western Australia
    Parenting orders’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility

    Proceedings: Parenting orders.

    Facts: The mother and the father had two children together, Jack and Helen. The father breached a violence restraining order on four occasions and had been convicted of assaulting the mother. The father sought orders for shared parental responsibility for major long term issues concerning the children. The mother proposed that she have sole parental responsibility for issues concerning the children’s health, education and Jack’s speech and language therapy requirements, but otherwise agreed that there ought to be shared parental responsibility.

    Issue/s: One of the issues was should the parties have equal shared parental responsibility for the children?

    Reasoning/Decision: In relation to the issue of shared parental responsibility, Thackray CJ was satisfied that the father had engaged in family violence and therefore the presumption of equal shared responsibility did not apply. His Honour noted that just because the presumption did not apply, did not mean that it could not be in the best interests of the children for the parents to have equal shared parental responsibility. However, in the circumstances, equal shared parental responsibility was not an option. The parents had shown no capacity to come to any agreements in relation to significant matters concerning the children and any order requiring them to consult would fail.

    His Honour concluded that the mother have sole parental responsibility for all major long term issues concerning the children. This was appropriate in circumstances where she was also to have primary care responsibility for the children and further, she was more in tune with the children’s needs and was better equipped than the father to make decisions for the children’s long term welfare (see [75]-[81]).

  • W and W [2006] FCWA 103 (6 October 2006) – Family Court of Western Australia
    Parenting orders’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Rebutting the presumption

    Proceedings: Parenting proceedings.

    Facts: The mother and the father had two children together and sought parenting orders. The mother proposed that she be given sole responsibility for decisions concerning the children’s welfare while the father sought orders for shared parental responsibility.

    Issue/s: One of the issues was whether the parties should have equal shared parental responsibility for the children?

    Reasoning/Decision: The presumption of equal shared parental responsibility did not apply here because the father assaulted the mother. However, Thackray J went on to state at [23]-[24]:

    ‘The fact the presumption does not apply is by no means the end of the matter. Judges in this Court have long taken the view that it is generally appropriate for both parents to have an equal say in major decisions about their children. This is particularly true of cases where the parents have a shared-care arrangement. The fact there has been family violence is clearly an important factor in determining whether it is appropriate for the parents to share parental responsibility; however, the nature of the violence needs to be assessed to determine whether it should have any impact.

    It is my assessment that the nature of the violence here was not such, in itself, as to have any real impact on the allocation of parental responsibility. However, I consider there are other reasons why it would not be in the best interests of the children for their parents to be left with shared parental responsibility’.

    His Honour held that the mother ought to be given sole parental responsibility in circumstances where the parties had an extremely poor relationship, they did not communicate with each other than by email (which the father used to abuse, annoy and denigrate the wife) and the father was extremely controlling, argumentative and pedantic (see [25]).