Western Australia

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]).