Court of Appeal
MYB v State of Western Australia [2024] WASCA 53 (13 May 2024) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Strangulation/choking’ – ‘ Physical violence and harm’ – ‘ Exposing children to domestic and family violence’
Charges: strangulation x 1; intent to cause bodily harm x 1.
Proceedings: Appeal against sentence
Facts: The male appellant strangled the female complainant, his de factor partner of three years, in the presence of their 9 month old child. [12] This incident was followed by an onslaught of physical abuse, and threats to kill made towards the complainant, which was all committed in the presence of their child. [13]–[17] The male appellant pleaded guilty to both charges and was sentenced to five years’ imprisonment. [5]
Grounds of Appeal: The appellant appealed the sentence on two grounds:
1.
The sentence of five years’ imprisonment on count 2 (intent to cause bodily harm) was manifestly excessive individual sentence was manifestly inadequate; and
2.
The sentence on count 2 infringed the totality principle [7]
Decision and Reasoning: Leave to appeal dismissed. The Court (Mazza, MItchell and Vandongen JJA) dismissed ground one, holding the appellant’s submission to ‘substantially downplay the seriousness’ of their actions which involved ‘sustained and persistent violence’. [67] In reaching this conclusion, the Court’s emphasised the following aggravating features of the appellant’s actions: the acts were committed in the presence of the appellant’s child, the acts have and will continue to have severe psychological consequences on the complainant (and the child), and the acts included the particularly serious offence of strangulation:
Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life-threatening. The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future severe domestic violence and a relatively common cause of domestic violence-related homicide [64]
The Court also dismissed ground two, finding the ground to have no merit. [94] The sentencing judge’s findings that the appellant ‘had not fully accepted responsibility for his conduct’ indicated a significant need for personal deterrence and denunciation. [95]
State of WA v Riley [2024] WASCA 11 (2 February 2024) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Manifestly inadequate’ – ‘ Totality principle’ – ‘ Physical violence and harm’ – ‘ Breach of protection order’ – ‘ Exposing children to domestic and family violence’ – ‘ History of domestic and family violence’
Charges: Aggravated threat to kill x 1; aggravated assault occasioning bodily harm x 1; aggravated deprivation of liberty x 1.
Proceedings: Appeal against sentence.
Facts: The 24-year-old male respondent had a ‘lengthy history of violent offending’ against the female complainant, his former partner and mother to his three children [7]. In 2021, the respondent was declared a ‘serial family violence offender’ as a consequence of this offending. In May 2022, the respondent was released from prison, after serving 10 months for breaching a protection order in which the complainant was a protected person [8].
Upon release, the respondent knowingly breached this order by attending the complainant’s home and demanding that she and the children come to his family home. When she refused, the respondent branded a knife, threatened to ‘kill’ the complainant and hit her (without rupturing her skin) ([12]–[14]). Their children were present during this exchange ([16]). The complainant complied with the demand and got into the car with her children. While parked at a petrol station to purchase alcohol, the respondent was arrested by police for breaching the prevention order ([19]–[20]). The respondent was sentenced to 2 years and 2 months’ immediate imprisonment [3].
Grounds of Appeal: The State appealed the sentence on two grounds:
1.
Each individual sentence was manifestly inadequate; and
2.
The total effective sentence infringes the first limb of the totality principle (ie, sentences be proportionate to the gravity of the offence).
Decision and Reasoning: Appeal allowed. The Court (Buss P, Mazza and Hall JJA) resentenced the respondent to a total effective sentence of four years and 6 months’ imprisonment.
In relation to ground one, the Court held that original sentence did not properly reflect the numerous aggravating factors of the offending: the offending constituted breaches of a restraining order and was committed in ‘the presence of young children’ and in ‘the context of a family relationship’ [53]. Further, the respondent was ‘intoxicated, agitated and armed with a knife’ and ‘clearly intended to intimidate and terrify’ the complainant by threatening to kill her in the same manner as her father did her mother [54]–[55].
This case clearly required that significant weight be given to personal deterrence. The respondent has a deplorable history of offending against AB. He has shown disregard, if not frank contempt, for court orders put in place to protect AB. He is driven by a misplaced sense of entitlement that puts the continued safety of AB at real risk. That risk was confirmed by the assessment in the presentence report [66]
General deterrence also looms large in cases of this type. Domestic violence is a scourge on society. Awareness of this type of offending and concern to prevent it have grown markedly in recent years. Persistent violence and intimidation in the context of family relationships must be strongly discouraged by appropriate sentences [67]
Domestic violence can include physical injury, psychological injury and emotional trauma. It affects mainly women and children. In the present case, the respondent physically, psychologically and emotionally abused AB. The abuse occurred in the context of an obvious imbalance of power. The respondent's offending included behaviour that was calculated to intimidate, coerce and control AB. Denunciation of the respondent's criminal conduct, in addition to personal and general deterrence, was an importance sentencing consideration [68]
With respect to ground two, the Court held that the original sentences were manifestly inadequate. Public interest in ‘maintaining appropriate sentencing standards’ for serious offending of the type committed by the respondent weighed strongly against the Court’s exercise of residual discretion (ie, discretion to not interfere with a primary judge’s exercise of sentencing discretion) ([76]; [79]).
State of WA v LSM [2023] WASCA 132 (1 September 2023) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Physical violence and harm’ – ‘ Sexual and reproductive abuse’ – ‘ Strangulation’ – ‘ Manifestly inadequate’ – ‘ Coercive control’ – ‘ Attempting to pervert the course of justice’
Charges: Deprivation of liberty x 1; threat to kill x2; aggressive sexual penetration without consent x 2; attempting to pervert the course of justice x 1.
Proceedings: Appeal against sentence.
Facts: In October 2020, the male respondent subjected the female complainant, his wife, to ‘a prolonged episode of physical and sexual violence that demonstrated a complete disregard for her humanity’ [1]. During the complainant’s birthday celebrations, the respondent became jealous and accused the complainant of being unfaithful. The respondent forced the complainant into their car, drove dangerously and threatened to crash the car and kill them both [2]. The complainant escaped the car on two occasions and managed to contact emergency services before being forcibly pulled back in ([2]; [95]–[96]). Over the course of two hours at their apartment, the respondent deprived the complainant of her liberty, repeatedly raped and strangled her [3].
In November 2021, the respondent pleaded guilty to seven offences and sentenced to a total effective sentence of 5 years and 6 months’ imprisonment [7].
Grounds of Appeal: The State appealed the sentence on three grounds:
1.
The sentencing judge erred in reducing the head sentence by 25% for the respondent’s pleas of guilty, which were not offered at the first reasonable opportunity;
2.
The individual sentences for the four offences of aggravated sexual penetration without consent were manifestly inadequate; and
3.
The total effective sentence failed to adequately reflect the overall criminality of the offenses [8]
Decision and Reasoning: Appeal allowed. The discount for the respondent’s pleas of guilty was reduced to 15% [31], and the total effective sentence increased to 9 years and 6 months’ imprisonment [33].
In relation to ground one, Quinlan CJ, Buss P and Mazza JA observed that the respondent conceded that his pleas of guilty ‘were not made at the first reasonable opportunity’ ([10]; [52]; [127]).
In relation to ground two, Quinlan CJ held that ‘none’ of the individual sentences reflected the objective seriousness of the offences, nor the ‘actual violence’ of the respondent and his intention to ‘violate, hurt, demean and humiliate’ the complaint ([15]–[16]):
First, each offence was committed in circumstances of aggravation, being the familial relationship between the respondent and the victim … The circumstance of aggravation in this case reflects the recognition by the Parliament and the courts of the seriousness of the offences involving family violence, including by reason of the significant breach of trust and exploitation of vulnerability involved in such offending. These matters make clear the importance of general deterrence in sentencing for offences involving violence by men on vulnerable victims (mostly women) with whom they are in domestic relationships [14]
[T]he offences were accompanied by actual violence (beyond the violence inherent in the act of sexually penetrating a person without their consent), including the forceful nature of the penetration … and the respondent squeezing the victim’s neck and throat. As to the latter, the particular dangers associated with offences involving non-fatal strangulation and the role they play in cases of intimate and family violence are well recognised [16]
Finally, the offences were committed in the victim’s own home. Not only was the victim with a ‘person’ with whom she should have been safe (her husband), she was in a ‘place’ in which she was entitled to feel safe. The respondent betrayed her on both fronts [17]
President Buss similarly characterised the nature and quality of the respondent’s ‘violence’ as particularly ‘serious’:
Domestic and sexual violence can involve physical injury, sexual assault, psychological injury and emotional trauma. Domestic and sexual violence is a major concern in Australia. It affects mainly women and children. In the present case, the respondent physically, sexually, psychologically and emotionally abused F. The abuse occurred in the context of a patent imbalance of power. The respondent's offending included behaviour that was calculated to intimidate, coerce and control F. Denunciation of the respondent's criminal conduct and personal and general deterrence were important sentencing considerations [59]
In relation to ground three, Quinlan CJ held that all of the offences ‘involved the coercive control by the respondent of his wife’, demonstrating a degree of criminality not captured by the original sentence [23].
This ‘pattern of abuse’ was also identified by Buss P as being inadequately reflected in the overall criminality of the respondent’s offences [71]. For Buss P, the respondent’s attempt to ‘manipulate’ the complainant into withdrawing her complaints was a ‘continuation of his abusive conduct’, as too ‘the physical abuse … the infliction of emotional trauma’ [70]–[71]:
All of those counts manifested behaviour by the respondent that was calculated to intimidate, coerce and control [the complainant] [71]
Justice of Appeal Mazza emphasised the domestic context in which the offending took place as particularly warranting a heavier sentence:
It cannot be overlooked that the entire offending occurred in the context of a domestic setting. The respondent, grossly in this case, abused the trust his wife placed in him, using his greater physical strength to overcome any resistance and to dominate, terrify and humiliate [the complainant]. [The complainant] was a highly vulnerable victim who could not readily extricate herself from the position into which the respondent forced her. It is the duty of courts to impose a proper sentence that is commensurate with the seriousness of the offending in order to, as far as courts can, protect victims of domestic violence and to denounce such conduct [146]
Gomboc v State of WA [2023] WASCA 115 (24 July 2023) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Aggravated assault’ – ‘ Physical violence and harm’ – ‘ Damaging property’ – ‘ Emotional and psychological abuse’ – ‘ Totality principle’ – ‘ People with mental illness’ – ‘ Strangulation’ – ‘ People affected by substance misuse’
Charges: Aggravated assault causing bodily harm x 2; threat to harm x 7; doing an act endangering life, safety or health with intent x 1; threat to kill x 6; aggravated unlawful wounding x 1; wilful damage to property x 1; being armed likely to cause fear x 1.
Proceedings: Appeal against sentence.
Facts: The male appellant and female complainant began a domestic relationship in 2014 that lasted till 2018. Throughout ‘almost the entirety of the relationship’, the appellant subjected the complainant to ‘regular physical and verbal abuse’ (eg, strangulation, kicking, punching, and making threats to kill) ([2]; [19]; [24]–[110]). The complainant consequently suffered severe anxiety and post-traumatic stress disorder [2]. In July 2022, the male appellant was convicted of 19 offences and sentenced to 11 years and 10 months’ imprisonment.
Grounds of Appeal: The appellant advanced an appeal against the sentence on three grounds:
1.
The total effective sentence failed to ‘bear a proper relationship to the overall criminality of his conduct’;
2.
The trial judge erred in failing to find that imprisonment would weigh more heavily on the appellant due to his mental health condition; and
3.
The trial judge erred in not making a positive finding as the appellant’s prospects of rehabilitation [5]
Decision and Reasoning: The appeal was upheld on ground one. The total effective sentence was reformulated to 9 years and 6 months’ imprisonment.
The Court (Quinlan CJ, Mazza and Hall JJA) identified the appellant’s pleas of guilty, mental health issues, character references and prospects of rehabilitation as factors militating towards the conclusion that the original sentence was high ([9]; [199]; [202]; [220]).
In our view, this is truly one of those cases when the metaphor of taking one ‘last look at the total, just to see whether it looks wrong’ is apt. And when we take a last look at the sentence of almost 12 years, in light of the appellant’s pleas of guilty and such potential for rehabilitation … the sentence looks wrong [220]
It was observed that the appellant suffered from post-traumatic stress disorder, major depressive disorder and poly-substance misuse disorder (cannabis and alcohol) arising from the appellant’s time in military service with the Australian Army. [120]
However, the Court maintained the need to strongly denounce this type of offending:
The appellant’s steps to begin addressing his perceptions, attitudes and behaviours towards domestic and family violence are encouraging. Nevertheless … the persistent, callous and menacing nature of his offending required a long term of imprisonment. Offending of this kind must be denounced by severe penalties [223]
The Court dismissed the second ground of appeal, finding insufficient evidence before the sentencing judge to support the conclusion that imprisonment would weigh more heavily on the appellant due to his mental health condition ([6]; [164]).
The Court also dismissed the third ground of appeal, observing the appellant’s insufficient insight into his behaviour and the ‘entrenched’ nature of his violent attitude in the domestic setting ([7]; [172]–[181]).
State of WA v Williams [2022] WASCA 105 (11 August 2022) – Western Australia Court of Appeal
‘Appeal’ – ‘Appeal against refusal to make declaration offender is a serial domestic family violence offender’ – ‘Criminal law’ – ‘Family violence legislation reform act 2020 (wa)’ – ‘Whether declaration can be made following conviction for family violence offence committed prior to commencement of legislation’ – ‘Whether legislation operates retrospectively’
Proceedings: Appeal against refusal to make a declaration that offender is a serial domestic family violence offender.
Facts: The Family Violence Legislative Reform Act 2020 (WA) by s 29 inserted s 124E into the Sentencing Act 1995 (WA). The amendment commenced on 1 January 2021. It provides that where an offender has been convicted of at least three prescribed offences, with at least three of them having been committed on different days, a judge may declare the offender to be a serial family violence offender, consequences of which include a presumption against the grant of bail, and specific sentencing options.
In September 2021 the offender was convicted of three offences, including one prescribed offence, committed on 14 November 2020. He had a prior record of 11 prescribed offences committed against Ms C. The trial judge did not declare him to be a serial family violence offender on the basis that to do so would infringe the presumption against the retrospective operation of statutes. The State appealed the decision not to declare Williams a serial family violence offender.
Grounds: The primary judge erroneously concluded that s 124E(l) of the Sentencing Act 1995 (WA) did not apply to the 'family violence offences' for which the respondent had been convicted because those offences occurred prior to the commencement of that statutory provision, and that to hold otherwise would infringe the presumption against the retrospective operation of statutes. The discretionary power in s 124E should have been exercised to declare the respondent to be a serial family violence offender.
Decision and Reasoning: Appeal granted; appeal allowed; matter remitted to consider whether to make declaration.
The Court held that s124E could apply to offences committed before its commencement. First, the section conferred a discretion on a court to make such a declaration [45]. The ‘trigger’ for the discretion is the ‘convicting’ of an offender by the court, which ‘speaks prospectively, that is, it only applies to a ‘conviction’ occurring after the commencement of the section’ [46]. Secondly, while the statutory preconditions required to enliven the discretion might include events that occurred before the section commenced, ‘that does not give the section a retrospective operation’ [47]. Thirdly, where a court makes a declaration, the consequences only affect an offender’s rights in the future [48]. Finally, even the disqualification from being authorized to use firearms or explosives is ‘prospective only; it does not make any such licence, permit, approval or authorisation invalid at any time in the past’ [52].
CEG v Wright [2022] WASCA 42 (1 April 2022) – Western Australia Court of Appeal
‘Appeal’ – ‘Assault’ – ‘Audio recording evidence’ – ‘Child protection’ – ‘Evidence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Pregnancy’ – ‘Strangulation’ – ‘Use of extended family’ – ‘Victim credibility’
Charges: Aggravated assault x 1.
Proceedings: Appeal against conviction.
Issues: Whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Facts: The female complainant and male appellant were married for 10 years and had 4 children.
The couple’s fourth child died in May 2019, approximately 6 weeks after being born prematurely. In July 2019, the couple’s remaining children were removed from their care. During an argument about child custody proceedings, the appellant slapped and attempted to suffocate the complainant. An audio recording of the incident was captured by a listening device. The appellant was found guilty following jury trial and appealed on the ground that the verdict was unsupported by the evidence. The appellant argued that the complainant lacked credibility by making submissions about inconsistencies in her evidence.
Decision and Reasoning: The appeal was dismissed. The Court rejected the appellant’s submissions and affirmed the findings of the primary judge. The Court stated that ‘the recordings provided irrefutable, independent evidence that strongly supported the prosecution case’ and the complainant’s oral evidence. The Court stated that the audio recording contained ‘sounds… consistent with the impact of a hand to the face or head’, and a record of the complainant crying, complaining of being hit, and ‘pleading with the appellant not to hit her again’ [21]. Furthermore, the recording contained ‘muffled sounds consistent with the complainant being forced down into pillows or bedding’, a record of the appellant threatening to kill the complainant several times, and the complainant saying ‘get off me’ [23]. The Court found that any inconsistencies or omissions in the complainant’s evidence were minor and did not ‘justify a conclusion that the complainant was a generally untruthful or unreliable witness’. Moreover, the Court stated that complainant’s poor memory of the incident did not detract from her evidence, which ‘was strongly supported by the audio recording’ of the argument, and an audio recording in which the appellant made references to having hit the complainant [76]. Furthermore, the Court considered the fact that English was the complainant’s second language and found that a statutory declaration signed by the complainant, which stated that the appellant had not physically harmed her, had been signed ‘at the behest of her father-in-law without’ the complainant having understood them.
Turner v State of Western Australia [2021] WASCA 158 (3 September 2021) – Western Australia Court of Appeal
‘Appeal against conviction’ – ‘Children’ – ‘Defense of insanity’ – ‘Evidence’ – ‘Intention’ – ‘Jury directions’ – ‘Misdirection or non-direction’ – ‘Murder’ – ‘Reasonable doubt’ – ‘Separation’ – ‘Unsound mind’
Charges: Murder.
Proceedings: Appeal against conviction.
Facts: The male appellant killed the female victim, his former partner with a kitchen knife at the conclusion of a pre-trial conference held at the Joondalup Courthouse in relation to legal proceedings the appellant had brought in the Magistrates Court claiming a debt from the victim. The parties had been in a relationship for 6 years and had two primary school aged children and were engaged in child custody and property settlement disputes. The circumstances and cause of the victim’s death were uncontested [1]-[15]. At trial, the appellant unsuccessfully raised the defence of unsound mind on the basis that he had suffered from a dissociative seizure when he stabbed the victim [23]. The appellant was found guilty of murder.
Grounds: The appellant appealed on the ground ‘that there was a miscarriage of justice when the learned trial Judge failed to direct or adequately direct the jury that evidence going to insanity, but not establishing it, was relevant and admissible on the issue of specific intent’ [20], [53]. This evidence ‘should have caused the jury to doubt that the appellant was capable of forming’ an ‘intent to cause death’ or ‘intent to cause bodily injury of such a nature as to endanger, or to be likely to endanger, the life of the person killed’ [51]. The evidence related to the nature of the stab wounds, the knife used, the location of the incident, and aspects of appellant’s account that were consistent with expert evidence on dissociative seizures [52].
Decision and Reasoning: Appeal dismissed.
Justices Buss, Mitchell and Morrison stated that:
…the directions were adequate. Taken as a whole, the trial Judge's direction conveyed to the jury that they were to have regard to the whole of the evidence, including the evidence referred to [in the appellant’s submissions] in deciding whether the State had proven the requisite intention beyond reasonable doubt. Even if the trial Judge's direction had not done so, it would not have given rise to any miscarriage of justice… because the evidence… considered in light of other evidence led at trial, was not capable of giving rise to any reasonable doubt as to the appellant's capacity to form the requisite intent, or as to whether he did form the requisite intent [52]-[55].
Their Honours continued:
…[i]n our view, the only reasonable inference open on the whole of the evidence, considered in light of the presumption of sanity, was that the appellant was acting purposefully, with a requisite intention for murder, and he could not have killed Ms Thomas while in a dissociative seizure. No miscarriage of justice could arise from any failure of the trial Judge to give a more specific direction about the jury having regard to evidence when considering the issue of intent, when the relevant evidence was not capable of giving rise to a reasonable doubt as to whether the appellant intended to kill Ms Thomas, or inflict an objectively life-threatening injury upon her [108].
Noi v The State of Western Australia [2021] WASCA 84 (18 May 2021) – Western Australia Court of Appeal
‘Aggravated home burglary’ – ‘Application for leave to appeal against sentence’ – ‘Control’ – ‘Damaging property’ – ‘Intimidation’ – ‘Protection orders’ – ‘Unlawful damage’
Charges: Aggravated home burglary x 1; Unlawful damage x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The male appellant and female victim were former de facto partners, and have 2 children. They had been separated for approximately 8 years. Shortly after a three-day order protecting the victim expired, the appellant attended the victim’s residence to show the victim and their son “who was the boss”. He kicked in the front door, and wilfully destroyed the television. He said: “you can get a restraining order that lasts for two years, it’s not going to make any difference”, and smashed the victim’s phone as she tried to call 000. The appellant was arrested and pleaded guilty. He was sentenced to 2 years immediate imprisonment, with eligibility for parole.
Grounds of appeal:
1.
A miscarriage of justice occurred when the sentencing judge “adopted the matters set out in the pre-sentence report” and found the offences indicated that the appellant “harboured feelings of entitlement consistent with being a domestic violence perpetrator”.
2.
Sentences of immediate imprisonment were manifestly excessive as to type and the sentencing judge should have imposed conditionally suspended sentences.
3.
2 years’ immediate imprisonment for the aggravated home burglary offence was manifestly excessive as to length.
Held: Application for leave to appeal on ground 1 was dismissed. Leave to appeal on grounds 2 and 3 was also refused and the appeal dismissed.
Ground 1: No reasonable prospect of success.
The finding the offending was “a form of domestic violence” was based on the sentencing judge’s own assessment of the circumstances, rather than the impugned pre-sentence report/feelings of entitlement.
“[45]… the sentencing judge was plainly correct to characterise the offending as a form of domestic violence. The victim was the appellant’s former de facto partner and the mother of his two children (the children being co-parented by the appellant and the victim). The appellant violently forced entry into the victim’s home, when he knew she was present, by kicking in the front door. This occurred shortly after the expiry of a police order protecting the victim. The appellant wilfully damaged her property, including a mobile phone which was a means of seeking help, while threatening that the victim obtaining a 2 year restraining order would make no difference. He was clearly using violence to intimidate his former partner with whom he shared the care of their two children. The pre-sentence report was not required to conclude that the offending was a form of domestic violence. Additionally, the report was not actually relied upon by the sentencing judge for the purposes of reaching that conclusion. Even if the pre-sentence report had been relied upon for that purpose, there would be no miscarriage of justice as, in our view, it could not reasonably be contended that the offending in this case did not constitute a form of domestic violence.”
Finding that the appellant intended to intimidate the victim was inevitable, given the admitted conduct constituting the offence.
Grounds 2 and 3: The sentences were not arguably unreasonable or plainly unjust. The offending was serious, as the sentencing judge observed:
“As I’ve explained, the offending here is serious and included forced entry and the offending being carried out with an intent to intimidate and to assert control over your ex-partner. The offending also instilled fear in her, which it was intended to do.”
JLD v The State of WA [2020] WASCA 156 (18 September 2020) – Western Australia Court of Appeal
‘Aggravated assault’ – ‘Aggravated rape’ – ‘Application for leave to appeal against refusal to grant bail’ – ‘Coercive control’ – ‘Domestic violence’ – ‘Immolation’ – ‘Risk assessment’ – ‘Technology-facilitated abuse’
Charges: Aggravated sexual penetration without consent x 1; Common assault in circumstances of aggravation x 1; Threats to injure, endanger or harm any person x 1.
Proceedings: Appeal against refusal to grant bail.
Facts: The male appellant and female complainant were married in 2015. The complainant first reported domestic violence to relevant services in October 2019. The complainant reported that the appellant was emotionally abusive, jealous and controlling, including requiring the complainant to disclose her Facebook password to him, ‘monitor[ing] and question[ing] her on every expenditure on their bank statement’ and telling the complainant there was a ‘hidden camera in the house’ [22]-[23].
In February 2020, during an argument, the appellant made threats against the complainant including: ‘[y]ou and your daughter deserved to be burned alive like the Queensland family’ and accused the complainant of infidelity.
In March 2020, the complainant was recovering from surgery at home. The appellant demanded that the complainant have sex with him. When she refused, he forced her legs open and slapped her in the face saying ‘I’m still your husband and you’re bound to do it’ before raping her. A DFV protection order was made against the appellant to protect the complainant and her daughter.
Grounds: The primary judge erred in finding that the appellant posed a significant risk of interfering with the complainant such that there were no conditions that could be imposed on bail that could sufficiently protect the complainant.
Decision and reasoning: Leave to appeal refused. Appeal dismissed.
The primary judge was entitled to receive and take into account the information in the bail risk assessment report (prepared by a family violence worker).
[69] The risk assessment report, and the information on which the report was based, raised issues of serious concern in relation to the appellant’s psychological or psychiatric state and the safety and welfare of the complainant and her daughter if the appellant were to be granted bail. There were reasonable grounds, based on that information, for apprehending that the appellant may have engaged in an escalating process of serious family violence of a sexual character, including threats of greater violence, and may attempt to interfere with the complainant as a witness.
The primary judge was correct to reject the appellant’s submission that the nature of the complainant’s employment indicated that she had support in the community and was not vulnerable:
[26(c)] Her Honour rejected the appellant’s submission that the nature of the complainant’s employment indicated that she had support in the community and was not vulnerable. Her Honour said that offences of domestic violence are not confined to offences against unemployed women at home and that serious domestic violence against women occurs at all levels of society and affects all occupations (ts 4 - 5).
…
[80] Her Honour was obliged to have regard to matters favourable to the appellant’s application, including the presumption of innocence, the absence of a prior criminal record, the fact that the appellant had not actually interfered with the complainant (or any other person) as a witness, his stable and well-paid employment, his need to work to obtain revenue to meet his expenses including the cost of legal representation for his trial, the impact of the COVID-19 pandemic and the time that would elapse before his trial could be listed for hearing.
We are satisfied that her Honour had regard to all matters which militated in favour of a grant of bail.
However, the nature and extent of the relevant risk justified her Honour’s decision to refuse bail.
The State of Western Australia v Clark [2020] WASCA 103 (25 June 2020) – Western Australia Court of Appeal
‘Attempted murder’ – ‘Children’ – ‘Controlling, jealous, obsessive behaviour’ – ‘Home burglary’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Self-harm’ – ‘State appeal against sentence’ – ‘Weapon’
Charges: Unlawful assault whilst in the place of another person without that person’s consent x 1; attempted murder committed in the course of an aggravated home burglary x 1
Case type: State appeal against sentence
Facts: The respondent was convicted after trial and was sentenced to 15 years’ imprisonment on the count of attempted murder in the course of an aggravated home burglary and to 3 years’ 6 months' imprisonment for unlawful assault, to be served concurrently such that the total effective sentence was 15 years.
The respondent man and his female ex-partner had been in a relationship for approximately 10 years and had 4 children. They separated in 2017. The respondent had difficulty accepting the end of the relationship, particularly the prospect of his ex-partner dating other men. On the night before the offending the respondent fabricated an incident by texting himself purporting to be from a man who recently had sex with her. The next morning, the respondent broke in to her house and asked her to reconcile. She declined and told him that another man was in her bed (the victim). The respondent took a knife from the kitchen and threw it across the room then left.
Later than morning he returned armed with a knife, assaulted the victim and slashed him across the face causing life-threatening injuries. He also attacked the victim with a screwdriver. The respondent left the house with the knives and began to cut his own wrist with one of them.
The trial judge made the following findings of fact: (1) the respondent did not act in self-defence, but attacked the victim with dangerous weapons; (2) the respondent entered the bedroom with the intention of killing the victim, and this intention was not only momentary; (3) the attack on the victim was premeditated - after leaving the house on the first occasion, he returned with a weapon and entered the house without consent and with an intention to attack the victim; (4) the attack was persistent and violent; (5) the attack resulted in a very serious injury to the victim’s face and was likely to have endangered his life without medical treatment. The victim now has permanent facial disfigurement; (6) the respondent fled the scene and rendered no assistance to the victim; (7) the offending likely traumatised his ex-partner; (8) the respondent did not accept responsibility for his offending and sought to blame the victim; and (9) the respondent displayed limited remorse and victim empathy ([34]).
The respondent had a prior criminal record, including a conviction for domestic violence in relation to his ex-partner so was not a person of previous good character ([36]). He had used drugs since he was 18 years old, experienced marked issues with emotional arousal and regulation, and was diagnosed with ADD as a child. Further, longstanding issues with trust, impulsivity, a sense of betrayal, being made a fool of, perceived injustices and poorly developed decision making and coping skills were relevant factors in his offending. The trial judge did not accept that the respondent's health issues, including ADD and epilepsy, reduced his moral culpability for the offending or reduced the necessity for general deterrence.
Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.
Ground: The sentence was manifestly inadequate.
Held: The Court allowed the appeal, and imposed a total effective sentence was 17 years’ imprisonment ([86]). The Court considered the maximum penalty, the statutory minimum penalty, the facts, circumstances and seriousness of the offending (including the victim’s vulnerability and circumstances), the importance of appropriate punishment and personal and general deterrence as sentencing considerations, and all aggravating and mitigating factors. It held that the sentence of 15 years' imprisonment was not commensurate with the seriousness of the respondent's offending, and was substantially less than the sentencing outcome that was properly open to the trial judge ([77]).
S 283(2) Criminal Code was introduced "to ensure that burglars who commit numerous home invasions, which can involve serious violent offences, are incarcerated for longer periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to reflect community abhorrence of such offending" ([56]). Section 6(1) Sentencing Act 1995 (WA) provides that a sentence must be commensurate with the seriousness of the offence ([59]). The respondent’s offending was a serious example of offending of this type. The attack was premeditated, persistent, and was carried out with weapons. The respondent’s intention to kill the victim was not held only momentarily, but was present while he was inflicting the injuries. After attacking the victim, he fled the scene and rendered no assistance to him ([70]). Although his prior criminal record did not aggravate the seriousness of the offending, it indicated that he was not entitled to leniency on the ground that he was of previous good character ([72]). He did not take responsibility for his actions and denied criminal responsibility ([74]). Mitigating circumstances were limited: he had a difficult and problematic childhood, made appropriate concessions at trial which facilitated the administration of justice, showed some remorse and victim empathy, and completed a number of courses and had positively responded to his incarceration ([76]).
The State of Western Australia v Radovic 2020 WASCA 46 (8 April 2020) – Western Australia Court of Appeal
‘Attempted murder’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Threats to kill’
Charges: Possessing an offensive weapon in circumstances likely to cause fear to other persons x1; Attempted murder x1;
Appeal type: State appeal against sentence
Grounds: The sentence for the charge of attempted murder was manifestly inadequate having regard to:
•
The maximum penalty for the offence;
◦
The person the respondent intended to kill was a police officer;
◦
The respondent knew the victim was a police officer before he struck;
◦
The respondent came to the premises armed with a sword which he knew was sharp and which he was adept at using;
◦
The respondent used the sword to strike to victim in an vulnerable area which was likely to result in fatal injury;
◦
The offence was committed in front of witnesses; and
◦
The offence was committed in breach of the respondent’s VRO and community based order;
•
The serious nature of the offence and the circumstances in which it was committed, including:
•
The serious impact of the offence on the victim and his family;
•
The personal circumstances of the respondent;
•
The importance of personal deterrence considering the respondent’s criminal history; and
•
The importance of general deterrence and punishment for offences of this nature.
Facts: The respondent man pleaded guilty to the charge of possessing an offensive weapon and was convicted following trial of the charge of attempted murder. He was sentenced to 4 years’ imprisonment for possession of an offensive weapon and 9 year’s imprisonment for attempted murder. The sentences were backdated to the day of offending and ordered to be served concurrently, resulting in a total effective sentence of 9 years’ imprisonment. The ground of appeal relates to the sentence imposed on the charge of attempted murder.
At the time of offending the respondent was the subject of a violence restraining order (‘VRO’) which prevented the respondent from contact or communicating with his former wife (Radovic) or any of their three children. The day before the offending, the respondent made an application seeking to vary the terms of the VRO. The former wife was opposed to the changes and the matter was adjourned. The next day, the respondent attended the workplace of Radovic’s brother armed with a samurai sword. Radovic’s brother was not there at the time. Later that day, the respondent went to the unit Radovic’s brother and sister shared, banged on the door and shouted threats to kill them. The Respondent did not know that Radovic and her children lived in the unit adjacent to her siblings’. Some of the children witnessed the display and police were called to the scene. The officers arrived in a marked vehicle and attended Radovic’s unit to take the children’s statements. Radovic arrived shortly after.
The Respondent returned to the unit while police were still there with the samurai sword and began to brandish his sword in a manner that caused fear to those present, constituting the first charge, while threatening to kill them. A witnesses alerted the police and the officers left the unit and approached the respondent. The respondent rushed towards one of the officers with the sword raised, prompting the officer to discharge his taser at the respondent, to no effect. The respondent then swung the sword and forcefully struck the officer’s head. This action formed the basis of the attempted murder charge and caused two lacerations. The respondent was eventually subdued and arrested.
Judgment: The sentence for attempted murder was manifestly inadequate and the respondent was re-sentenced to 13 years’ imprisonment.
None of the previous cases concerned truly comparable offending [60]. There is no tariff or usual sentencing range for a charge of attempted murder, sentences are variable and while all offences are very serious each case will turn on its own facts [61]. This was a very serious example of offending [62]. The Court found the fact that the fact that the victim was a police officer executing his duties was a "profoundly aggravating feature" [64]. They noted that "[p]olice officers are often required to place their safety at risk in carrying out their duty to protect the public. It is vital that the courts impose significant custodial sentences upon offenders who intentionally cause serious injury to police officers acting in the course of their duties" [63]. Personal and general deterrence were thought to have particular importance especially in light of the respondent’s criminal history [66]. In light of the limited mitigation available to the respondent, it was found that the sentence was "substantially less than the sentence open on a proper exercise of the sentencing discretion" [72] because of the seriousness of the offence and aggravating features.
Larsen v The State of Western Australia [2019] WASCA 181 (15 November 2019) – Western Australia Court of Appeal
‘Application for leave to adduce additional evidence’ – ‘Application for leave to appeal against conviction following guilty pleas’ – ‘Burglary’ – ‘Following, harassing and monitoring’ – ‘Mandatory minimum sentence’ – ‘Physical violence and harm’ – ‘Stalking’ – ‘Weapon’
Charges: Being armed in a way that may cause fear x 1; aggravated home burglary x 1; act intended to cause grievous bodily harm or prevent arrest committed in the course of an aggravated home burglary x 1.
Case type: Applications for leave to adduce additional evidence, application for leave to appeal against conviction following guilty pleas
Grounds:
1.
The appellant suffered a miscarriage of justice in relation to Count 3 because he pleaded guilty to the charge without understanding its nature.
2.
There was an abuse of process by reason of the amendment of the indictment on the morning of the appellant's sentencing.
3.
The appellant suffered a miscarriage of justice by failing to apply for an adjournment of the proceedings in respect of Counts 2 and 3 following the amendment of the indictment.
Facts: The appellant was convicted on his guilty pleas of being armed with a dangerous instrument, namely a knife, in circumstances likely to cause fear to any person (Count 1), aggravated home burglary (Count 2), and unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm in the course of the aggravated home burglary, contrary to s 294(1) and (2) Criminal Code (Count 3). On Count 3, the appellant was sentenced to 15 years' imprisonment, and received concurrent terms of imprisonment with respect to the other offences. Count 3 on the indictment was amended on the day of the appellant's sentencing. The appellant claimed that he had not been advised of the nature of the amended charge or that the amended charge carried a mandatory 15 year sentence of imprisonment.
The circumstances of the offending are as follows. In 2016, the appellant and victim met through an online website, and commenced an intimate relationship. Their relationship eventually broke down, and a violence restraining order protecting the victim was served on the appellant in late-2016. In 2017, the appellant breached the restraining order by attempting to communicate with the victim via mobile. He called the victim 243 times in an attempt to contact her. The appellant continued to breach the order by following the victim to her sister’s unit. Once inside the unit, he slashed and stabbed the victim with a knife in a frenzied and concerted attempt to seriously injure her. The victim feared that she was going to die. Family, neighbours and other members of the public intervened in the appellant’s assault, and he was eventually restrained.
Held: Applications for leave to adduce additional evidence granted; application for leave to appeal on ground 1 granted, appeal dismissed; applications for leave to appeal on grounds 2 and 3 dismissed. It is difficult to set aside a conviction based on a guilty plea, because there is a strong public interest in the finality of proceedings. There are 3 well-recognised circumstances in which courts may set aside guilty pleas: (1) the appellant did not understand the nature of the charge or intend to admit guilt; (2) upon the admitted facts, the appellant could not, in law, have been guilty of the offence; or (3) the guilty plea was obtained by improper inducement, fraud or intimidation ([44]-[46]). The appellant alleged that he suffered a miscarriage of justice because had he been informed that he would be liable to be sentenced to a mandatory minimum sentence of 15 years' imprisonment, he would have pleaded not guilty ([50]).
Mazza and Beech JJA rejected the submissions that the appellant did not understand the element of intent in Count 3 ([88]) and the fact that if he pleaded guilty to Count 3, he would be liable to a mandatory minimum sentence of 15 years’ imprisonment ([89]-[106]). The appellant understood the advice which he was given ([97]). Their Honours also dismissed the alleged abuse of process for two reasons: first, there was no abuse in the making of an application to amend the indictment, and second, the amendment was unnecessary and did not prejudice the appellant because he was liable to the minimum term stipulated in s 294(2) regardless of whether the indictment stated that the offence was committed in the course of a home burglary ([111]). After analysing the authorities, their Honours determined that the State was not required to plead that fact in order to make the offender liable to the mandatory minimum penalty in s 294(2) ([123]). Ground 3 was found to have no reasonable prospects of success, as the appellant did not suffer a miscarriage of justice as a result of his counsel failing to seek an adjournment of the sentencing principles ([128]-[129]).
Allanson J agreed with the orders and reasons of Mazza and Beech JJA, but believed that it was not necessary to decide whether the State was required to plead that the offence in Count 3 was committed in the course of conduct that constituted an aggravated home burglary in order to make the appellant liable to the mandatory minimum penalty in s 294(2) of the Code. That the appellant failed to show that he did not understand the indictment, as amended, or the advice given to him, was sufficient reason to refuse leave to appeal on Ground 2 ([133]).
The State of Western Australia v TLP [2019] WASCA 66 (24 April 2019) – Western Australia Court of Appeal
‘Manifestly inadequate’ – ‘Older people’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality principle’
Charges: Aggravated grievous bodily harm x 1; Aggravated assault occasioning bodily harm x 1; Aggravated sexual penetration without consent x 6; Attempted aggravated sexual penetration without consent x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent attended his grandparents’ house. He attacked his grandmother and his half-sister. He punched his grandmother and threw her to the ground. He then attempted and committed acts of sexual penetration on his half-sister including inserting his finger and penis into her vagina and anus performing cunnilingus on her ([34]-[56]).
A circumstance of aggravation was that his relationship with both victims was a family and domestic relationship. In relation to his half-sister, another aggravating circumstance was that he threatened to kill her. In relation to his grandmother, another aggravating circumstance was that she was over the age of 60 ([27]).
The respondent pleaded guilty and was sentenced to a total effective sentence of 6 years 6 months’ imprisonment ([1]-[2]).
Issues: Whether the sentence was manifestly inadequate; whether the total effective sentence infringed the first limb of the totality principle by not reflecting the overall criminality.
Decision and reasoning: The appeal was allowed. All three Justices agreed that the respondent should be resentenced to 12 years’ imprisonment but differed on the appropriate individual sentences.
Mazza and Beech JJA identified the mitigating factors identified by the trial judge (including his pleas of guilty, remorse, prior good record, relatively young age, negative familial experiences and previous bullying) entitled the respondent to some mitigation of his sentence ([93]). However, the individual sentences for each offence were judged to be manifestly inadequate having regard to the maximum sentences and the seriousness of the conduct. Their Honours would have imposed a total sentence of 15 years, but after having a ‘last look’ to ensure that the total sentence measures the respondent’s overall criminality, determined that a sentence of 12 years was appropriate ([115]-[116]).
Buss P would have imposed a total effective sentence of 12 years’ imprisonment without requiring a ‘last look’. His Honour imposed slightly different sentences for each individual count compared to Mazza and Beech JJA ([20]-[21]).
The State of Western Australia v Yamalulu [2019] WASCA 6 (14 January 2019) – Western Australia Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Breaches of protection orders’ – ‘Factors affecting risk’ – ‘People affected by substance misuse’ – ‘People with children’ – ‘Protection order’ – ‘Sentencing considerations’
Charges: Grievous bodily harm x 1.
Appeal type: Appeal against sentence.
Facts: In 2017, the respondent, a Walmajarri man, pleaded guilty to, and was convicted of, one count of unlawfully doing grievous bodily harm in circumstances of aggravation. The respondent was in a family and domestic relationship with the victim and the offending occurred when he was in breach of a violence restraining order which prohibited him from contacting or being within 50 metres of the victim. The respondent and the victim had been in a relationship for approximately three or four years, and had one child aged three at the time of the offence. The relationship had ended due to various incidents of domestic violence. On the night of the offence, the respondent was heavily intoxicated. He found the victim engaging in sex with his brother and subsequently violently assaulted her by throwing her to the ground and jumping on her chest, legs and head. He made attempts to hide from the police and initially gave the police a false name. The victim sustained numerous serious injuries resulting in quadriplegia. The primary judge imposed a sentence of three years and 8 months’ immediate imprisonment.
Issues: It was submitted that the sentencing judge fell into error because the sentence was manifestly inadequate on the following grounds:
•
The maximum penalty for the offence;
•
The exceptionally serious nature of the injuries;
•
The serious nature of the offence and the circumstances in which it was committed;
•
The need for the sentence to reflect specific and general deterrence;
•
The respondent’s personal circumstances; and
•
The requirement that sentencing be consistent with the standards of sentencing set for offending of this nature.
Decision and reasoning: The Court allowed the appeal, set aside the sentence imposed by the sentencing judge and re-sentenced the respondent. The Court found that the respondent committed ‘a frenzied, savage and relentless attack upon a vulnerable, unarmed and defenceless woman’ ([68]). He inflicted serious injuries despite the victim’s repeated pleas for him to stop attacking her. Their Honours also highlighted that the victim was left permanently disabled with limited prospects of improvement. The respondent had a significant prior criminal history including previous convictions for violent offending against the victim. This history of violence indicated that he should not be afforded any leniency on the ground that he was of good character. Mitigating factors included the respondent’s plea of guilty, his remorse and acceptance of responsibility and the adverse effects of his troubled upbringing ([72]). Although the ongoing effects of his childhood deprivation may have diminished his moral culpability, the consequences of his behaviour rendered him a serious threat to women with whom he is or has been in a relationship. Their Honours therefore held that the initial sentence was not merely ‘lenient’ or ‘at the lower end of the available range’, but was unreasonable and plainly unjust. A sentence of seven years six months’ imprisonment was imposed.
NPA v The State of Western Australia [2018] WASCA 131 (2 August 2018) – Western Australia Court of Appeal
‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Social and psychological abuse’ – ‘Strangulation’ – ‘Totality principle’
Charges: Aggravated sexual penetration without consent x 5; Attempted aggravated sexual penetration without consent x 1; Threat to harm x 1.
Appeal type: Defendant appeal against sentence.
Facts: The appellant and complainant were in an ‘on again, off again’ relationship. The appellant was controlling, manipulative, and required the complainant to change her mobile phone number so that her family and friends could not contact her. There were two main occasions of sexual offending. On the first occasion, at a time where they had broken up, the appellant was invited to the complainant’s house. He held the complainant down and inserted his penis into her vagina ([11]). On the second occasion, the appellant entered the house uninvited. Over the next 8 to 9 hours, the appellant repeatedly raped the complainant, choked her, and smashed a TV remote over her head ([17]-[26]).
The appellant was convicted of the charges and was sentenced to a total effective sentence of 12 years’ 6 months imprisonment ([1]).
Issues: Whether the total effective sentence infringed the first limb of the totality principle by not reflecting the overall criminality.
Decision and reasoning: The Court held that the sentence did reflect the overall criminality. The Court referred to serious and aggravating factors including the maximum sentences, the repeated nature of the offences, the prolonged nature of the second occasion, the appellant using degrading and insulting threats towards the complainant and the appellant’s refusal to accept the complainant’s ending of the relationship ([52]).
Salkilld v State of Western Australia [2017] WASCA 168 (15 September 2017) – Western Australia Court of Appeal
‘Breach of protection order’ – ‘Breach of violence restraining order’ – ‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Remorse’
Charges: Making a threat unlawfully to kill x 1; Stealing x 1; Breach of protective bail conditions x 7; Breach of bail x 1; Breach of violence restraining order (VRO) x 8; Possession of property reasonably suspected to be stolen x 1; Fraud x 1; Breach of police order x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and respondent were in a relationship for about 3 weeks ([4]). The appellant had come home to find the complainant having sex with another man, which sparked a confrontation. The police issued the appellant with a police order preventing the appellant from approaching the property and complainant ([5]). The appellant returned to the property the same day and tried to force his way in ([6]). The complainant obtained a violence restraining order (VRO) against the appellant ([7]). Over a period of two days, the appellant called the complainant many times and sent text messages of a frightening nature, including threats to kill her ([15]-[19]). This conduct constituted a breach of the VRO subject of the appeal. The following day, the complainant repeatedly rode his motorcycle past the house while the complainant was inside ([21]). This conduct constituted a breach of the protective bail conditions subject of the appeal.
The sentencing judge imposed a head sentence of 2 years’ imprisonment ([45]).
Issues: There were 4 grounds of appeal:
1.
the sentence of 9 months’ imprisonment for the breach of VRO was manifestly excessive;
2.
the sentence of 6 months’ imprisonment for the breach of protective bail conditions was manifestly excessive;
3.
the head sentence infringed the principle of totality; and
4.
the judge erred in finding that the appellant was not remorseful
Decision and Reasoning: All four grounds were dismissed for the following reasons.
For ground 4, the appellant bore the burden of proof in establishing remorse on the balance of probabilities ([58]). While the appellant had expressed some level of responsibility for his actions, he displayed minimal victim empathy ([59]). It was open to the sentencing judge to find that the appellant demonstrated no remorse for the impact of his offending on the victim ([57]).
For ground 1, the breach was a sustained course of conduct and the messages were intended to terrify the complainant ([63]).
For ground 2, the breach was not an isolated breach and was intended to intimidate the complainant ([72]).
For ground 3, the sentence was well within the acceptable range ([87]).
Liyanage v Western Australia [2017] WASCA 112 (22 June 2017) – Western Australia Court of Appeal
‘Expert evidence’ – ‘Risk’ – ‘Social context evidence’ – ‘Social worker’
Charges: Manslaughter x 1.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant and the deceased were married. The appellant killed the deceased by striking him with a mallet [1]. The appellant gave evidence that the deceased was violent and controlling, and regularly sexually assaulted her [2]. She had no memory of the night on which she killed the deceased [47]. At trial, she was found not guilty of murder, but guilty of manslaughter [4]. She was sentenced to 4 years’ imprisonment [5].
Issues: The appellant appealed on several grounds including that the trial judge should not have excluded evidence from a social worker about domestic violence [7].
Decision and Reasoning:
All grounds of appeal were dismissed.
Social worker’s risk assessment evidence
The social worker’s risk assessment evidence was in relation to the psychological impact of prolonged exposure to domestic violence (popularly known as ‘battered women’s syndrome’). The evidence was based on a risk assessment which used actuarial risk assessment tools and clinical guides, including the ‘Power and Control Wheel’ (see Chapter 4 Context Statement) ([108]). The Court held that: the evidence did not explain the appellant’s state of mind ([123]-[129]); that the evidence did not quantify the extent of the risk, and did not specifically address the question of the risk of homicide ([130]-[148]); and the actuarial tools had not ‘been accepted by the relevant scientific community’ as defining the risk of homicide ([149]-[154]).
Social context evidence
The Court remarked that there is a body of academic literature that is supportive of ‘social context evidence’ in family violence cases ([160]). This may include evidence about the history of the parties’ relationship, the defendant’s culture, the non-psychological impediments to leaving a violent relationship ([160]-[165]). However, the Court emphasised that in order for contextual evidence to be admitted, counsel must ‘explain precisely and specifically how it is relevant to the issues which the jury are required to decide’ ([166]).
The social worker gave evidence in relation to the dangers of leaving a domestic violence relationship ([169]-[177]) and the exercise of power and control which characterises domestic and family violence ([178]-[183]). The Court held that the evidence was too general, and would not assist the jury beyond the knowledge and inferences able to be drawn by a reasonable person ([177],[183]).
McCoombe v The State of Western Australia [2016] WASCA 227 (20 December 2016) – Western Australia 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) – 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 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]).
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]).
The State of Western Australia v Stoeski [2016] WASCA 16 (19 January 2016) – 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) – 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.
X v Y [2015] WASCA 70 (13 April 2015) – Western Australia Court of Appeal
‘Expert witness’ – ‘Self-represented litigants’ – ‘Social worker’
Appeal type: Appeal against parenting orders.
Facts: The appellant father and respondent mother were in a de facto relationship. They separated when the appellant attacked the respondent’s father. The Family Court of Western Australia made parenting orders granting the appellant no time with the children. The appeal centred upon the report of a ‘single expert witness’, a social worker. The expert’s report stated that the children did not wish to spend time with the father due to his violence towards their grandfather and his verbal abuse towards the children themselves ([25]).
Issues: Whether the magistrate erred in law by failing to take into account relevant matters and finding that the single expert witness was qualified as a witness.
Decision and Reasoning: The appeal was dismissed. The Court summarised the principles applicable to Family Court appeals at [61]-[64]. In relation to the evidence of the social worker, the Court held that it was open to the magistrate to admit the evidence: “[although] he was not a clinical psychologist, the nature of his expertise was known to the parties when the court ordered, by consent, that he be the single expert witness in the proceedings” [126].
Oxenham v The State of Western Australia [2015] WASCA 30 (18 February 2015) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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]).
Note: the High Court refused special leave to appeal (see Hellings v The Queen [2005] HCATrans 255 (27 April 2005)).
Atherden v The State of Western Australia [2010] WASCA 33 (26 February 2010) – 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).
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).
Lydon v Lydon [2008] WASCA 8 (8 February 2008) – Western Australia Court of Appeal
‘Elder abuse’ – ‘Emotional abuse’ – ‘Expert evidence’ – ‘Meaning of emotional abuse’ – ‘Protection order’ – ‘Provocation’ – ‘Sibling abuse’ – ‘Threat to kill’
Proceedings: Protection order appeal.
Facts: The appellant man was the respondent to a protection order protecting his mother and sister. The appellant resided in a shed adjacent to the mother’s home, which his sister frequently visits. All parties are in dispute in relation to the deceased father/husband’s estate, discussions in relation to which resulted in the allegations of emotional abuse upon which the protection order was granted. The brother stood in his sister’s way, blocking her from leaving, got in her face, poked her in the chest and shouted at her and her mother. There was an allegation that on at least one occasion he made a threat to kill his sister. The order included terms that the appellant not contact the other parties or enter the house.
Issue: Whether provocation defence applies to application for restraining order; Whether finding of emotional abuse requires supportive expert testimony.
Decision and Reasoning: Appeal dismissed.
The argument that provocation was required to be considered was misconceived as the Magistrate’s decision was founded on emotional abuse.
Le Miere AJA held that:
[49] Emotional abuse is not defined in the Act. Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent that, being directed at a specific person, annoys, alarms or causes substantial emotional distress to that person.
[50] There are two aspects to emotional abuse. The first is the adverse impact upon another person's emotional wellbeing. The second is the behaviour that causes the negative impact upon the emotional wellbeing of another.
And:
[57] It is open to the court to be satisfied that a person has behaved in an ongoing manner that is emotionally abusive towards another person without the benefit of any psychiatric or psychological evidence. Behaviour that is emotionally abusive is behaviour that is reasonably capable of adversely impacting upon another person's emotional wellbeing. This does not require psychological or other expert evidence.
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]).
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]).
The State of Western Australia v Anderson [2004] WASCA 157 (29 July 2004) – 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]).
Note: the High Court refused special leave to appeal (see Hellings v The Queen [2005] HCATrans 255 (27 April 2005)).
Owen v Jilba [2002] WASCA 283 (17 October 2002) – 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) – 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) – 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) – 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) – 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) – 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.
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.
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.
Vickers v Bailey [2000] WASCA 136 (19 May 2000) – 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.
Gallegos v R [1999] WASCA 191 (6 October 1999) – Western Australia Court of 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”.
Court of Appeal
MYB v State of Western Australia [2024] WASCA 53 (13 May 2024) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Strangulation/choking’ – ‘ Physical violence and harm’ – ‘ Exposing children to domestic and family violence’
Charges: strangulation x 1; intent to cause bodily harm x 1.
Proceedings: Appeal against sentence
Facts: The male appellant strangled the female complainant, his de factor partner of three years, in the presence of their 9 month old child. [12] This incident was followed by an onslaught of physical abuse, and threats to kill made towards the complainant, which was all committed in the presence of their child. [13]–[17] The male appellant pleaded guilty to both charges and was sentenced to five years’ imprisonment. [5]
Grounds of Appeal: The appellant appealed the sentence on two grounds:
1.
The sentence of five years’ imprisonment on count 2 (intent to cause bodily harm) was manifestly excessive individual sentence was manifestly inadequate; and
2.
The sentence on count 2 infringed the totality principle [7]
Decision and Reasoning: Leave to appeal dismissed. The Court (Mazza, MItchell and Vandongen JJA) dismissed ground one, holding the appellant’s submission to ‘substantially downplay the seriousness’ of their actions which involved ‘sustained and persistent violence’. [67] In reaching this conclusion, the Court’s emphasised the following aggravating features of the appellant’s actions: the acts were committed in the presence of the appellant’s child, the acts have and will continue to have severe psychological consequences on the complainant (and the child), and the acts included the particularly serious offence of strangulation:
Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life-threatening. The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future severe domestic violence and a relatively common cause of domestic violence-related homicide [64]
The Court also dismissed ground two, finding the ground to have no merit. [94] The sentencing judge’s findings that the appellant ‘had not fully accepted responsibility for his conduct’ indicated a significant need for personal deterrence and denunciation. [95]
State of WA v Riley [2024] WASCA 11 (2 February 2024) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Manifestly inadequate’ – ‘ Totality principle’ – ‘ Physical violence and harm’ – ‘ Breach of protection order’ – ‘ Exposing children to domestic and family violence’ – ‘ History of domestic and family violence’
Charges: Aggravated threat to kill x 1; aggravated assault occasioning bodily harm x 1; aggravated deprivation of liberty x 1.
Proceedings: Appeal against sentence.
Facts: The 24-year-old male respondent had a ‘lengthy history of violent offending’ against the female complainant, his former partner and mother to his three children [7]. In 2021, the respondent was declared a ‘serial family violence offender’ as a consequence of this offending. In May 2022, the respondent was released from prison, after serving 10 months for breaching a protection order in which the complainant was a protected person [8].
Upon release, the respondent knowingly breached this order by attending the complainant’s home and demanding that she and the children come to his family home. When she refused, the respondent branded a knife, threatened to ‘kill’ the complainant and hit her (without rupturing her skin) ([12]–[14]). Their children were present during this exchange ([16]). The complainant complied with the demand and got into the car with her children. While parked at a petrol station to purchase alcohol, the respondent was arrested by police for breaching the prevention order ([19]–[20]). The respondent was sentenced to 2 years and 2 months’ immediate imprisonment [3].
Grounds of Appeal: The State appealed the sentence on two grounds:
1.
Each individual sentence was manifestly inadequate; and
2.
The total effective sentence infringes the first limb of the totality principle (ie, sentences be proportionate to the gravity of the offence).
Decision and Reasoning: Appeal allowed. The Court (Buss P, Mazza and Hall JJA) resentenced the respondent to a total effective sentence of four years and 6 months’ imprisonment.
In relation to ground one, the Court held that original sentence did not properly reflect the numerous aggravating factors of the offending: the offending constituted breaches of a restraining order and was committed in ‘the presence of young children’ and in ‘the context of a family relationship’ [53]. Further, the respondent was ‘intoxicated, agitated and armed with a knife’ and ‘clearly intended to intimidate and terrify’ the complainant by threatening to kill her in the same manner as her father did her mother [54]–[55].
This case clearly required that significant weight be given to personal deterrence. The respondent has a deplorable history of offending against AB. He has shown disregard, if not frank contempt, for court orders put in place to protect AB. He is driven by a misplaced sense of entitlement that puts the continued safety of AB at real risk. That risk was confirmed by the assessment in the presentence report [66]
General deterrence also looms large in cases of this type. Domestic violence is a scourge on society. Awareness of this type of offending and concern to prevent it have grown markedly in recent years. Persistent violence and intimidation in the context of family relationships must be strongly discouraged by appropriate sentences [67]
Domestic violence can include physical injury, psychological injury and emotional trauma. It affects mainly women and children. In the present case, the respondent physically, psychologically and emotionally abused AB. The abuse occurred in the context of an obvious imbalance of power. The respondent's offending included behaviour that was calculated to intimidate, coerce and control AB. Denunciation of the respondent's criminal conduct, in addition to personal and general deterrence, was an importance sentencing consideration [68]
With respect to ground two, the Court held that the original sentences were manifestly inadequate. Public interest in ‘maintaining appropriate sentencing standards’ for serious offending of the type committed by the respondent weighed strongly against the Court’s exercise of residual discretion (ie, discretion to not interfere with a primary judge’s exercise of sentencing discretion) ([76]; [79]).
State of WA v LSM [2023] WASCA 132 (1 September 2023) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Physical violence and harm’ – ‘ Sexual and reproductive abuse’ – ‘ Strangulation’ – ‘ Manifestly inadequate’ – ‘ Coercive control’ – ‘ Attempting to pervert the course of justice’
Charges: Deprivation of liberty x 1; threat to kill x2; aggressive sexual penetration without consent x 2; attempting to pervert the course of justice x 1.
Proceedings: Appeal against sentence.
Facts: In October 2020, the male respondent subjected the female complainant, his wife, to ‘a prolonged episode of physical and sexual violence that demonstrated a complete disregard for her humanity’ [1]. During the complainant’s birthday celebrations, the respondent became jealous and accused the complainant of being unfaithful. The respondent forced the complainant into their car, drove dangerously and threatened to crash the car and kill them both [2]. The complainant escaped the car on two occasions and managed to contact emergency services before being forcibly pulled back in ([2]; [95]–[96]). Over the course of two hours at their apartment, the respondent deprived the complainant of her liberty, repeatedly raped and strangled her [3].
In November 2021, the respondent pleaded guilty to seven offences and sentenced to a total effective sentence of 5 years and 6 months’ imprisonment [7].
Grounds of Appeal: The State appealed the sentence on three grounds:
1.
The sentencing judge erred in reducing the head sentence by 25% for the respondent’s pleas of guilty, which were not offered at the first reasonable opportunity;
2.
The individual sentences for the four offences of aggravated sexual penetration without consent were manifestly inadequate; and
3.
The total effective sentence failed to adequately reflect the overall criminality of the offenses [8]
Decision and Reasoning: Appeal allowed. The discount for the respondent’s pleas of guilty was reduced to 15% [31], and the total effective sentence increased to 9 years and 6 months’ imprisonment [33].
In relation to ground one, Quinlan CJ, Buss P and Mazza JA observed that the respondent conceded that his pleas of guilty ‘were not made at the first reasonable opportunity’ ([10]; [52]; [127]).
In relation to ground two, Quinlan CJ held that ‘none’ of the individual sentences reflected the objective seriousness of the offences, nor the ‘actual violence’ of the respondent and his intention to ‘violate, hurt, demean and humiliate’ the complaint ([15]–[16]):
First, each offence was committed in circumstances of aggravation, being the familial relationship between the respondent and the victim … The circumstance of aggravation in this case reflects the recognition by the Parliament and the courts of the seriousness of the offences involving family violence, including by reason of the significant breach of trust and exploitation of vulnerability involved in such offending. These matters make clear the importance of general deterrence in sentencing for offences involving violence by men on vulnerable victims (mostly women) with whom they are in domestic relationships [14]
[T]he offences were accompanied by actual violence (beyond the violence inherent in the act of sexually penetrating a person without their consent), including the forceful nature of the penetration … and the respondent squeezing the victim’s neck and throat. As to the latter, the particular dangers associated with offences involving non-fatal strangulation and the role they play in cases of intimate and family violence are well recognised [16]
Finally, the offences were committed in the victim’s own home. Not only was the victim with a ‘person’ with whom she should have been safe (her husband), she was in a ‘place’ in which she was entitled to feel safe. The respondent betrayed her on both fronts [17]
President Buss similarly characterised the nature and quality of the respondent’s ‘violence’ as particularly ‘serious’:
Domestic and sexual violence can involve physical injury, sexual assault, psychological injury and emotional trauma. Domestic and sexual violence is a major concern in Australia. It affects mainly women and children. In the present case, the respondent physically, sexually, psychologically and emotionally abused F. The abuse occurred in the context of a patent imbalance of power. The respondent's offending included behaviour that was calculated to intimidate, coerce and control F. Denunciation of the respondent's criminal conduct and personal and general deterrence were important sentencing considerations [59]
In relation to ground three, Quinlan CJ held that all of the offences ‘involved the coercive control by the respondent of his wife’, demonstrating a degree of criminality not captured by the original sentence [23].
This ‘pattern of abuse’ was also identified by Buss P as being inadequately reflected in the overall criminality of the respondent’s offences [71]. For Buss P, the respondent’s attempt to ‘manipulate’ the complainant into withdrawing her complaints was a ‘continuation of his abusive conduct’, as too ‘the physical abuse … the infliction of emotional trauma’ [70]–[71]:
All of those counts manifested behaviour by the respondent that was calculated to intimidate, coerce and control [the complainant] [71]
Justice of Appeal Mazza emphasised the domestic context in which the offending took place as particularly warranting a heavier sentence:
It cannot be overlooked that the entire offending occurred in the context of a domestic setting. The respondent, grossly in this case, abused the trust his wife placed in him, using his greater physical strength to overcome any resistance and to dominate, terrify and humiliate [the complainant]. [The complainant] was a highly vulnerable victim who could not readily extricate herself from the position into which the respondent forced her. It is the duty of courts to impose a proper sentence that is commensurate with the seriousness of the offending in order to, as far as courts can, protect victims of domestic violence and to denounce such conduct [146]
Gomboc v State of WA [2023] WASCA 115 (24 July 2023) – Western Australia Court of Appeal
‘ Appeal against sentence’ – ‘ Aggravated assault’ – ‘ Physical violence and harm’ – ‘ Damaging property’ – ‘ Emotional and psychological abuse’ – ‘ Totality principle’ – ‘ People with mental illness’ – ‘ Strangulation’ – ‘ People affected by substance misuse’
Charges: Aggravated assault causing bodily harm x 2; threat to harm x 7; doing an act endangering life, safety or health with intent x 1; threat to kill x 6; aggravated unlawful wounding x 1; wilful damage to property x 1; being armed likely to cause fear x 1.
Proceedings: Appeal against sentence.
Facts: The male appellant and female complainant began a domestic relationship in 2014 that lasted till 2018. Throughout ‘almost the entirety of the relationship’, the appellant subjected the complainant to ‘regular physical and verbal abuse’ (eg, strangulation, kicking, punching, and making threats to kill) ([2]; [19]; [24]–[110]). The complainant consequently suffered severe anxiety and post-traumatic stress disorder [2]. In July 2022, the male appellant was convicted of 19 offences and sentenced to 11 years and 10 months’ imprisonment.
Grounds of Appeal: The appellant advanced an appeal against the sentence on three grounds:
1.
The total effective sentence failed to ‘bear a proper relationship to the overall criminality of his conduct’;
2.
The trial judge erred in failing to find that imprisonment would weigh more heavily on the appellant due to his mental health condition; and
3.
The trial judge erred in not making a positive finding as the appellant’s prospects of rehabilitation [5]
Decision and Reasoning: The appeal was upheld on ground one. The total effective sentence was reformulated to 9 years and 6 months’ imprisonment.
The Court (Quinlan CJ, Mazza and Hall JJA) identified the appellant’s pleas of guilty, mental health issues, character references and prospects of rehabilitation as factors militating towards the conclusion that the original sentence was high ([9]; [199]; [202]; [220]).
In our view, this is truly one of those cases when the metaphor of taking one ‘last look at the total, just to see whether it looks wrong’ is apt. And when we take a last look at the sentence of almost 12 years, in light of the appellant’s pleas of guilty and such potential for rehabilitation … the sentence looks wrong [220]
It was observed that the appellant suffered from post-traumatic stress disorder, major depressive disorder and poly-substance misuse disorder (cannabis and alcohol) arising from the appellant’s time in military service with the Australian Army. [120]
However, the Court maintained the need to strongly denounce this type of offending:
The appellant’s steps to begin addressing his perceptions, attitudes and behaviours towards domestic and family violence are encouraging. Nevertheless … the persistent, callous and menacing nature of his offending required a long term of imprisonment. Offending of this kind must be denounced by severe penalties [223]
The Court dismissed the second ground of appeal, finding insufficient evidence before the sentencing judge to support the conclusion that imprisonment would weigh more heavily on the appellant due to his mental health condition ([6]; [164]).
The Court also dismissed the third ground of appeal, observing the appellant’s insufficient insight into his behaviour and the ‘entrenched’ nature of his violent attitude in the domestic setting ([7]; [172]–[181]).
State of WA v Williams [2022] WASCA 105 (11 August 2022) – Western Australia Court of Appeal
‘Appeal’ – ‘Appeal against refusal to make declaration offender is a serial domestic family violence offender’ – ‘Criminal law’ – ‘Family violence legislation reform act 2020 (wa)’ – ‘Whether declaration can be made following conviction for family violence offence committed prior to commencement of legislation’ – ‘Whether legislation operates retrospectively’
Proceedings: Appeal against refusal to make a declaration that offender is a serial domestic family violence offender.
Facts: The Family Violence Legislative Reform Act 2020 (WA) by s 29 inserted s 124E into the Sentencing Act 1995 (WA). The amendment commenced on 1 January 2021. It provides that where an offender has been convicted of at least three prescribed offences, with at least three of them having been committed on different days, a judge may declare the offender to be a serial family violence offender, consequences of which include a presumption against the grant of bail, and specific sentencing options.
In September 2021 the offender was convicted of three offences, including one prescribed offence, committed on 14 November 2020. He had a prior record of 11 prescribed offences committed against Ms C. The trial judge did not declare him to be a serial family violence offender on the basis that to do so would infringe the presumption against the retrospective operation of statutes. The State appealed the decision not to declare Williams a serial family violence offender.
Grounds: The primary judge erroneously concluded that s 124E(l) of the Sentencing Act 1995 (WA) did not apply to the 'family violence offences' for which the respondent had been convicted because those offences occurred prior to the commencement of that statutory provision, and that to hold otherwise would infringe the presumption against the retrospective operation of statutes. The discretionary power in s 124E should have been exercised to declare the respondent to be a serial family violence offender.
Decision and Reasoning: Appeal granted; appeal allowed; matter remitted to consider whether to make declaration.
The Court held that s124E could apply to offences committed before its commencement. First, the section conferred a discretion on a court to make such a declaration [45]. The ‘trigger’ for the discretion is the ‘convicting’ of an offender by the court, which ‘speaks prospectively, that is, it only applies to a ‘conviction’ occurring after the commencement of the section’ [46]. Secondly, while the statutory preconditions required to enliven the discretion might include events that occurred before the section commenced, ‘that does not give the section a retrospective operation’ [47]. Thirdly, where a court makes a declaration, the consequences only affect an offender’s rights in the future [48]. Finally, even the disqualification from being authorized to use firearms or explosives is ‘prospective only; it does not make any such licence, permit, approval or authorisation invalid at any time in the past’ [52].
CEG v Wright [2022] WASCA 42 (1 April 2022) – Western Australia Court of Appeal
‘Appeal’ – ‘Assault’ – ‘Audio recording evidence’ – ‘Child protection’ – ‘Evidence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Pregnancy’ – ‘Strangulation’ – ‘Use of extended family’ – ‘Victim credibility’
Charges: Aggravated assault x 1.
Proceedings: Appeal against conviction.
Issues: Whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Facts: The female complainant and male appellant were married for 10 years and had 4 children.
The couple’s fourth child died in May 2019, approximately 6 weeks after being born prematurely. In July 2019, the couple’s remaining children were removed from their care. During an argument about child custody proceedings, the appellant slapped and attempted to suffocate the complainant. An audio recording of the incident was captured by a listening device. The appellant was found guilty following jury trial and appealed on the ground that the verdict was unsupported by the evidence. The appellant argued that the complainant lacked credibility by making submissions about inconsistencies in her evidence.
Decision and Reasoning: The appeal was dismissed. The Court rejected the appellant’s submissions and affirmed the findings of the primary judge. The Court stated that ‘the recordings provided irrefutable, independent evidence that strongly supported the prosecution case’ and the complainant’s oral evidence. The Court stated that the audio recording contained ‘sounds… consistent with the impact of a hand to the face or head’, and a record of the complainant crying, complaining of being hit, and ‘pleading with the appellant not to hit her again’ [21]. Furthermore, the recording contained ‘muffled sounds consistent with the complainant being forced down into pillows or bedding’, a record of the appellant threatening to kill the complainant several times, and the complainant saying ‘get off me’ [23]. The Court found that any inconsistencies or omissions in the complainant’s evidence were minor and did not ‘justify a conclusion that the complainant was a generally untruthful or unreliable witness’. Moreover, the Court stated that complainant’s poor memory of the incident did not detract from her evidence, which ‘was strongly supported by the audio recording’ of the argument, and an audio recording in which the appellant made references to having hit the complainant [76]. Furthermore, the Court considered the fact that English was the complainant’s second language and found that a statutory declaration signed by the complainant, which stated that the appellant had not physically harmed her, had been signed ‘at the behest of her father-in-law without’ the complainant having understood them.
Turner v State of Western Australia [2021] WASCA 158 (3 September 2021) – Western Australia Court of Appeal
‘Appeal against conviction’ – ‘Children’ – ‘Defense of insanity’ – ‘Evidence’ – ‘Intention’ – ‘Jury directions’ – ‘Misdirection or non-direction’ – ‘Murder’ – ‘Reasonable doubt’ – ‘Separation’ – ‘Unsound mind’
Charges: Murder.
Proceedings: Appeal against conviction.
Facts: The male appellant killed the female victim, his former partner with a kitchen knife at the conclusion of a pre-trial conference held at the Joondalup Courthouse in relation to legal proceedings the appellant had brought in the Magistrates Court claiming a debt from the victim. The parties had been in a relationship for 6 years and had two primary school aged children and were engaged in child custody and property settlement disputes. The circumstances and cause of the victim’s death were uncontested [1]-[15]. At trial, the appellant unsuccessfully raised the defence of unsound mind on the basis that he had suffered from a dissociative seizure when he stabbed the victim [23]. The appellant was found guilty of murder.
Grounds: The appellant appealed on the ground ‘that there was a miscarriage of justice when the learned trial Judge failed to direct or adequately direct the jury that evidence going to insanity, but not establishing it, was relevant and admissible on the issue of specific intent’ [20], [53]. This evidence ‘should have caused the jury to doubt that the appellant was capable of forming’ an ‘intent to cause death’ or ‘intent to cause bodily injury of such a nature as to endanger, or to be likely to endanger, the life of the person killed’ [51]. The evidence related to the nature of the stab wounds, the knife used, the location of the incident, and aspects of appellant’s account that were consistent with expert evidence on dissociative seizures [52].
Decision and Reasoning: Appeal dismissed.
Justices Buss, Mitchell and Morrison stated that:
…the directions were adequate. Taken as a whole, the trial Judge's direction conveyed to the jury that they were to have regard to the whole of the evidence, including the evidence referred to [in the appellant’s submissions] in deciding whether the State had proven the requisite intention beyond reasonable doubt. Even if the trial Judge's direction had not done so, it would not have given rise to any miscarriage of justice… because the evidence… considered in light of other evidence led at trial, was not capable of giving rise to any reasonable doubt as to the appellant's capacity to form the requisite intent, or as to whether he did form the requisite intent [52]-[55].
Their Honours continued:
…[i]n our view, the only reasonable inference open on the whole of the evidence, considered in light of the presumption of sanity, was that the appellant was acting purposefully, with a requisite intention for murder, and he could not have killed Ms Thomas while in a dissociative seizure. No miscarriage of justice could arise from any failure of the trial Judge to give a more specific direction about the jury having regard to evidence when considering the issue of intent, when the relevant evidence was not capable of giving rise to a reasonable doubt as to whether the appellant intended to kill Ms Thomas, or inflict an objectively life-threatening injury upon her [108].
Noi v The State of Western Australia [2021] WASCA 84 (18 May 2021) – Western Australia Court of Appeal
‘Aggravated home burglary’ – ‘Application for leave to appeal against sentence’ – ‘Control’ – ‘Damaging property’ – ‘Intimidation’ – ‘Protection orders’ – ‘Unlawful damage’
Charges: Aggravated home burglary x 1; Unlawful damage x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The male appellant and female victim were former de facto partners, and have 2 children. They had been separated for approximately 8 years. Shortly after a three-day order protecting the victim expired, the appellant attended the victim’s residence to show the victim and their son “who was the boss”. He kicked in the front door, and wilfully destroyed the television. He said: “you can get a restraining order that lasts for two years, it’s not going to make any difference”, and smashed the victim’s phone as she tried to call 000. The appellant was arrested and pleaded guilty. He was sentenced to 2 years immediate imprisonment, with eligibility for parole.
Grounds of appeal:
1.
A miscarriage of justice occurred when the sentencing judge “adopted the matters set out in the pre-sentence report” and found the offences indicated that the appellant “harboured feelings of entitlement consistent with being a domestic violence perpetrator”.
2.
Sentences of immediate imprisonment were manifestly excessive as to type and the sentencing judge should have imposed conditionally suspended sentences.
3.
2 years’ immediate imprisonment for the aggravated home burglary offence was manifestly excessive as to length.
Held: Application for leave to appeal on ground 1 was dismissed. Leave to appeal on grounds 2 and 3 was also refused and the appeal dismissed.
Ground 1: No reasonable prospect of success.
The finding the offending was “a form of domestic violence” was based on the sentencing judge’s own assessment of the circumstances, rather than the impugned pre-sentence report/feelings of entitlement.
“[45]… the sentencing judge was plainly correct to characterise the offending as a form of domestic violence. The victim was the appellant’s former de facto partner and the mother of his two children (the children being co-parented by the appellant and the victim). The appellant violently forced entry into the victim’s home, when he knew she was present, by kicking in the front door. This occurred shortly after the expiry of a police order protecting the victim. The appellant wilfully damaged her property, including a mobile phone which was a means of seeking help, while threatening that the victim obtaining a 2 year restraining order would make no difference. He was clearly using violence to intimidate his former partner with whom he shared the care of their two children. The pre-sentence report was not required to conclude that the offending was a form of domestic violence. Additionally, the report was not actually relied upon by the sentencing judge for the purposes of reaching that conclusion. Even if the pre-sentence report had been relied upon for that purpose, there would be no miscarriage of justice as, in our view, it could not reasonably be contended that the offending in this case did not constitute a form of domestic violence.”
Finding that the appellant intended to intimidate the victim was inevitable, given the admitted conduct constituting the offence.
Grounds 2 and 3: The sentences were not arguably unreasonable or plainly unjust. The offending was serious, as the sentencing judge observed:
“As I’ve explained, the offending here is serious and included forced entry and the offending being carried out with an intent to intimidate and to assert control over your ex-partner. The offending also instilled fear in her, which it was intended to do.”
JLD v The State of WA [2020] WASCA 156 (18 September 2020) – Western Australia Court of Appeal
‘Aggravated assault’ – ‘Aggravated rape’ – ‘Application for leave to appeal against refusal to grant bail’ – ‘Coercive control’ – ‘Domestic violence’ – ‘Immolation’ – ‘Risk assessment’ – ‘Technology-facilitated abuse’
Charges: Aggravated sexual penetration without consent x 1; Common assault in circumstances of aggravation x 1; Threats to injure, endanger or harm any person x 1.
Proceedings: Appeal against refusal to grant bail.
Facts: The male appellant and female complainant were married in 2015. The complainant first reported domestic violence to relevant services in October 2019. The complainant reported that the appellant was emotionally abusive, jealous and controlling, including requiring the complainant to disclose her Facebook password to him, ‘monitor[ing] and question[ing] her on every expenditure on their bank statement’ and telling the complainant there was a ‘hidden camera in the house’ [22]-[23].
In February 2020, during an argument, the appellant made threats against the complainant including: ‘[y]ou and your daughter deserved to be burned alive like the Queensland family’ and accused the complainant of infidelity.
In March 2020, the complainant was recovering from surgery at home. The appellant demanded that the complainant have sex with him. When she refused, he forced her legs open and slapped her in the face saying ‘I’m still your husband and you’re bound to do it’ before raping her. A DFV protection order was made against the appellant to protect the complainant and her daughter.
Grounds: The primary judge erred in finding that the appellant posed a significant risk of interfering with the complainant such that there were no conditions that could be imposed on bail that could sufficiently protect the complainant.
Decision and reasoning: Leave to appeal refused. Appeal dismissed.
The primary judge was entitled to receive and take into account the information in the bail risk assessment report (prepared by a family violence worker).
[69] The risk assessment report, and the information on which the report was based, raised issues of serious concern in relation to the appellant’s psychological or psychiatric state and the safety and welfare of the complainant and her daughter if the appellant were to be granted bail. There were reasonable grounds, based on that information, for apprehending that the appellant may have engaged in an escalating process of serious family violence of a sexual character, including threats of greater violence, and may attempt to interfere with the complainant as a witness.
The primary judge was correct to reject the appellant’s submission that the nature of the complainant’s employment indicated that she had support in the community and was not vulnerable:
[26(c)] Her Honour rejected the appellant’s submission that the nature of the complainant’s employment indicated that she had support in the community and was not vulnerable. Her Honour said that offences of domestic violence are not confined to offences against unemployed women at home and that serious domestic violence against women occurs at all levels of society and affects all occupations (ts 4 - 5).
…
[80] Her Honour was obliged to have regard to matters favourable to the appellant’s application, including the presumption of innocence, the absence of a prior criminal record, the fact that the appellant had not actually interfered with the complainant (or any other person) as a witness, his stable and well-paid employment, his need to work to obtain revenue to meet his expenses including the cost of legal representation for his trial, the impact of the COVID-19 pandemic and the time that would elapse before his trial could be listed for hearing.
We are satisfied that her Honour had regard to all matters which militated in favour of a grant of bail.
However, the nature and extent of the relevant risk justified her Honour’s decision to refuse bail.
The State of Western Australia v Clark [2020] WASCA 103 (25 June 2020) – Western Australia Court of Appeal
‘Attempted murder’ – ‘Children’ – ‘Controlling, jealous, obsessive behaviour’ – ‘Home burglary’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Self-harm’ – ‘State appeal against sentence’ – ‘Weapon’
Charges: Unlawful assault whilst in the place of another person without that person’s consent x 1; attempted murder committed in the course of an aggravated home burglary x 1
Case type: State appeal against sentence
Facts: The respondent was convicted after trial and was sentenced to 15 years’ imprisonment on the count of attempted murder in the course of an aggravated home burglary and to 3 years’ 6 months' imprisonment for unlawful assault, to be served concurrently such that the total effective sentence was 15 years.
The respondent man and his female ex-partner had been in a relationship for approximately 10 years and had 4 children. They separated in 2017. The respondent had difficulty accepting the end of the relationship, particularly the prospect of his ex-partner dating other men. On the night before the offending the respondent fabricated an incident by texting himself purporting to be from a man who recently had sex with her. The next morning, the respondent broke in to her house and asked her to reconcile. She declined and told him that another man was in her bed (the victim). The respondent took a knife from the kitchen and threw it across the room then left.
Later than morning he returned armed with a knife, assaulted the victim and slashed him across the face causing life-threatening injuries. He also attacked the victim with a screwdriver. The respondent left the house with the knives and began to cut his own wrist with one of them.
The trial judge made the following findings of fact: (1) the respondent did not act in self-defence, but attacked the victim with dangerous weapons; (2) the respondent entered the bedroom with the intention of killing the victim, and this intention was not only momentary; (3) the attack on the victim was premeditated - after leaving the house on the first occasion, he returned with a weapon and entered the house without consent and with an intention to attack the victim; (4) the attack was persistent and violent; (5) the attack resulted in a very serious injury to the victim’s face and was likely to have endangered his life without medical treatment. The victim now has permanent facial disfigurement; (6) the respondent fled the scene and rendered no assistance to the victim; (7) the offending likely traumatised his ex-partner; (8) the respondent did not accept responsibility for his offending and sought to blame the victim; and (9) the respondent displayed limited remorse and victim empathy ([34]).
The respondent had a prior criminal record, including a conviction for domestic violence in relation to his ex-partner so was not a person of previous good character ([36]). He had used drugs since he was 18 years old, experienced marked issues with emotional arousal and regulation, and was diagnosed with ADD as a child. Further, longstanding issues with trust, impulsivity, a sense of betrayal, being made a fool of, perceived injustices and poorly developed decision making and coping skills were relevant factors in his offending. The trial judge did not accept that the respondent's health issues, including ADD and epilepsy, reduced his moral culpability for the offending or reduced the necessity for general deterrence.
Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.
Ground: The sentence was manifestly inadequate.
Held: The Court allowed the appeal, and imposed a total effective sentence was 17 years’ imprisonment ([86]). The Court considered the maximum penalty, the statutory minimum penalty, the facts, circumstances and seriousness of the offending (including the victim’s vulnerability and circumstances), the importance of appropriate punishment and personal and general deterrence as sentencing considerations, and all aggravating and mitigating factors. It held that the sentence of 15 years' imprisonment was not commensurate with the seriousness of the respondent's offending, and was substantially less than the sentencing outcome that was properly open to the trial judge ([77]).
S 283(2) Criminal Code was introduced "to ensure that burglars who commit numerous home invasions, which can involve serious violent offences, are incarcerated for longer periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to reflect community abhorrence of such offending" ([56]). Section 6(1) Sentencing Act 1995 (WA) provides that a sentence must be commensurate with the seriousness of the offence ([59]). The respondent’s offending was a serious example of offending of this type. The attack was premeditated, persistent, and was carried out with weapons. The respondent’s intention to kill the victim was not held only momentarily, but was present while he was inflicting the injuries. After attacking the victim, he fled the scene and rendered no assistance to him ([70]). Although his prior criminal record did not aggravate the seriousness of the offending, it indicated that he was not entitled to leniency on the ground that he was of previous good character ([72]). He did not take responsibility for his actions and denied criminal responsibility ([74]). Mitigating circumstances were limited: he had a difficult and problematic childhood, made appropriate concessions at trial which facilitated the administration of justice, showed some remorse and victim empathy, and completed a number of courses and had positively responded to his incarceration ([76]).
The State of Western Australia v Radovic 2020 WASCA 46 (8 April 2020) – Western Australia Court of Appeal
‘Attempted murder’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Threats to kill’
Charges: Possessing an offensive weapon in circumstances likely to cause fear to other persons x1; Attempted murder x1;
Appeal type: State appeal against sentence
Grounds: The sentence for the charge of attempted murder was manifestly inadequate having regard to:
•
The maximum penalty for the offence;
◦
The person the respondent intended to kill was a police officer;
◦
The respondent knew the victim was a police officer before he struck;
◦
The respondent came to the premises armed with a sword which he knew was sharp and which he was adept at using;
◦
The respondent used the sword to strike to victim in an vulnerable area which was likely to result in fatal injury;
◦
The offence was committed in front of witnesses; and
◦
The offence was committed in breach of the respondent’s VRO and community based order;
•
The serious nature of the offence and the circumstances in which it was committed, including:
•
The serious impact of the offence on the victim and his family;
•
The personal circumstances of the respondent;
•
The importance of personal deterrence considering the respondent’s criminal history; and
•
The importance of general deterrence and punishment for offences of this nature.
Facts: The respondent man pleaded guilty to the charge of possessing an offensive weapon and was convicted following trial of the charge of attempted murder. He was sentenced to 4 years’ imprisonment for possession of an offensive weapon and 9 year’s imprisonment for attempted murder. The sentences were backdated to the day of offending and ordered to be served concurrently, resulting in a total effective sentence of 9 years’ imprisonment. The ground of appeal relates to the sentence imposed on the charge of attempted murder.
At the time of offending the respondent was the subject of a violence restraining order (‘VRO’) which prevented the respondent from contact or communicating with his former wife (Radovic) or any of their three children. The day before the offending, the respondent made an application seeking to vary the terms of the VRO. The former wife was opposed to the changes and the matter was adjourned. The next day, the respondent attended the workplace of Radovic’s brother armed with a samurai sword. Radovic’s brother was not there at the time. Later that day, the respondent went to the unit Radovic’s brother and sister shared, banged on the door and shouted threats to kill them. The Respondent did not know that Radovic and her children lived in the unit adjacent to her siblings’. Some of the children witnessed the display and police were called to the scene. The officers arrived in a marked vehicle and attended Radovic’s unit to take the children’s statements. Radovic arrived shortly after.
The Respondent returned to the unit while police were still there with the samurai sword and began to brandish his sword in a manner that caused fear to those present, constituting the first charge, while threatening to kill them. A witnesses alerted the police and the officers left the unit and approached the respondent. The respondent rushed towards one of the officers with the sword raised, prompting the officer to discharge his taser at the respondent, to no effect. The respondent then swung the sword and forcefully struck the officer’s head. This action formed the basis of the attempted murder charge and caused two lacerations. The respondent was eventually subdued and arrested.
Judgment: The sentence for attempted murder was manifestly inadequate and the respondent was re-sentenced to 13 years’ imprisonment.
None of the previous cases concerned truly comparable offending [60]. There is no tariff or usual sentencing range for a charge of attempted murder, sentences are variable and while all offences are very serious each case will turn on its own facts [61]. This was a very serious example of offending [62]. The Court found the fact that the fact that the victim was a police officer executing his duties was a "profoundly aggravating feature" [64]. They noted that "[p]olice officers are often required to place their safety at risk in carrying out their duty to protect the public. It is vital that the courts impose significant custodial sentences upon offenders who intentionally cause serious injury to police officers acting in the course of their duties" [63]. Personal and general deterrence were thought to have particular importance especially in light of the respondent’s criminal history [66]. In light of the limited mitigation available to the respondent, it was found that the sentence was "substantially less than the sentence open on a proper exercise of the sentencing discretion" [72] because of the seriousness of the offence and aggravating features.
Larsen v The State of Western Australia [2019] WASCA 181 (15 November 2019) – Western Australia Court of Appeal
‘Application for leave to adduce additional evidence’ – ‘Application for leave to appeal against conviction following guilty pleas’ – ‘Burglary’ – ‘Following, harassing and monitoring’ – ‘Mandatory minimum sentence’ – ‘Physical violence and harm’ – ‘Stalking’ – ‘Weapon’
Charges: Being armed in a way that may cause fear x 1; aggravated home burglary x 1; act intended to cause grievous bodily harm or prevent arrest committed in the course of an aggravated home burglary x 1.
Case type: Applications for leave to adduce additional evidence, application for leave to appeal against conviction following guilty pleas
Grounds:
1.
The appellant suffered a miscarriage of justice in relation to Count 3 because he pleaded guilty to the charge without understanding its nature.
2.
There was an abuse of process by reason of the amendment of the indictment on the morning of the appellant's sentencing.
3.
The appellant suffered a miscarriage of justice by failing to apply for an adjournment of the proceedings in respect of Counts 2 and 3 following the amendment of the indictment.
Facts: The appellant was convicted on his guilty pleas of being armed with a dangerous instrument, namely a knife, in circumstances likely to cause fear to any person (Count 1), aggravated home burglary (Count 2), and unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm in the course of the aggravated home burglary, contrary to s 294(1) and (2) Criminal Code (Count 3). On Count 3, the appellant was sentenced to 15 years' imprisonment, and received concurrent terms of imprisonment with respect to the other offences. Count 3 on the indictment was amended on the day of the appellant's sentencing. The appellant claimed that he had not been advised of the nature of the amended charge or that the amended charge carried a mandatory 15 year sentence of imprisonment.
The circumstances of the offending are as follows. In 2016, the appellant and victim met through an online website, and commenced an intimate relationship. Their relationship eventually broke down, and a violence restraining order protecting the victim was served on the appellant in late-2016. In 2017, the appellant breached the restraining order by attempting to communicate with the victim via mobile. He called the victim 243 times in an attempt to contact her. The appellant continued to breach the order by following the victim to her sister’s unit. Once inside the unit, he slashed and stabbed the victim with a knife in a frenzied and concerted attempt to seriously injure her. The victim feared that she was going to die. Family, neighbours and other members of the public intervened in the appellant’s assault, and he was eventually restrained.
Held: Applications for leave to adduce additional evidence granted; application for leave to appeal on ground 1 granted, appeal dismissed; applications for leave to appeal on grounds 2 and 3 dismissed. It is difficult to set aside a conviction based on a guilty plea, because there is a strong public interest in the finality of proceedings. There are 3 well-recognised circumstances in which courts may set aside guilty pleas: (1) the appellant did not understand the nature of the charge or intend to admit guilt; (2) upon the admitted facts, the appellant could not, in law, have been guilty of the offence; or (3) the guilty plea was obtained by improper inducement, fraud or intimidation ([44]-[46]). The appellant alleged that he suffered a miscarriage of justice because had he been informed that he would be liable to be sentenced to a mandatory minimum sentence of 15 years' imprisonment, he would have pleaded not guilty ([50]).
Mazza and Beech JJA rejected the submissions that the appellant did not understand the element of intent in Count 3 ([88]) and the fact that if he pleaded guilty to Count 3, he would be liable to a mandatory minimum sentence of 15 years’ imprisonment ([89]-[106]). The appellant understood the advice which he was given ([97]). Their Honours also dismissed the alleged abuse of process for two reasons: first, there was no abuse in the making of an application to amend the indictment, and second, the amendment was unnecessary and did not prejudice the appellant because he was liable to the minimum term stipulated in s 294(2) regardless of whether the indictment stated that the offence was committed in the course of a home burglary ([111]). After analysing the authorities, their Honours determined that the State was not required to plead that fact in order to make the offender liable to the mandatory minimum penalty in s 294(2) ([123]). Ground 3 was found to have no reasonable prospects of success, as the appellant did not suffer a miscarriage of justice as a result of his counsel failing to seek an adjournment of the sentencing principles ([128]-[129]).
Allanson J agreed with the orders and reasons of Mazza and Beech JJA, but believed that it was not necessary to decide whether the State was required to plead that the offence in Count 3 was committed in the course of conduct that constituted an aggravated home burglary in order to make the appellant liable to the mandatory minimum penalty in s 294(2) of the Code. That the appellant failed to show that he did not understand the indictment, as amended, or the advice given to him, was sufficient reason to refuse leave to appeal on Ground 2 ([133]).
The State of Western Australia v TLP [2019] WASCA 66 (24 April 2019) – Western Australia Court of Appeal
‘Manifestly inadequate’ – ‘Older people’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality principle’
Charges: Aggravated grievous bodily harm x 1; Aggravated assault occasioning bodily harm x 1; Aggravated sexual penetration without consent x 6; Attempted aggravated sexual penetration without consent x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent attended his grandparents’ house. He attacked his grandmother and his half-sister. He punched his grandmother and threw her to the ground. He then attempted and committed acts of sexual penetration on his half-sister including inserting his finger and penis into her vagina and anus performing cunnilingus on her ([34]-[56]).
A circumstance of aggravation was that his relationship with both victims was a family and domestic relationship. In relation to his half-sister, another aggravating circumstance was that he threatened to kill her. In relation to his grandmother, another aggravating circumstance was that she was over the age of 60 ([27]).
The respondent pleaded guilty and was sentenced to a total effective sentence of 6 years 6 months’ imprisonment ([1]-[2]).
Issues: Whether the sentence was manifestly inadequate; whether the total effective sentence infringed the first limb of the totality principle by not reflecting the overall criminality.
Decision and reasoning: The appeal was allowed. All three Justices agreed that the respondent should be resentenced to 12 years’ imprisonment but differed on the appropriate individual sentences.
Mazza and Beech JJA identified the mitigating factors identified by the trial judge (including his pleas of guilty, remorse, prior good record, relatively young age, negative familial experiences and previous bullying) entitled the respondent to some mitigation of his sentence ([93]). However, the individual sentences for each offence were judged to be manifestly inadequate having regard to the maximum sentences and the seriousness of the conduct. Their Honours would have imposed a total sentence of 15 years, but after having a ‘last look’ to ensure that the total sentence measures the respondent’s overall criminality, determined that a sentence of 12 years was appropriate ([115]-[116]).
Buss P would have imposed a total effective sentence of 12 years’ imprisonment without requiring a ‘last look’. His Honour imposed slightly different sentences for each individual count compared to Mazza and Beech JJA ([20]-[21]).
The State of Western Australia v Yamalulu [2019] WASCA 6 (14 January 2019) – Western Australia Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Breaches of protection orders’ – ‘Factors affecting risk’ – ‘People affected by substance misuse’ – ‘People with children’ – ‘Protection order’ – ‘Sentencing considerations’
Charges: Grievous bodily harm x 1.
Appeal type: Appeal against sentence.
Facts: In 2017, the respondent, a Walmajarri man, pleaded guilty to, and was convicted of, one count of unlawfully doing grievous bodily harm in circumstances of aggravation. The respondent was in a family and domestic relationship with the victim and the offending occurred when he was in breach of a violence restraining order which prohibited him from contacting or being within 50 metres of the victim. The respondent and the victim had been in a relationship for approximately three or four years, and had one child aged three at the time of the offence. The relationship had ended due to various incidents of domestic violence. On the night of the offence, the respondent was heavily intoxicated. He found the victim engaging in sex with his brother and subsequently violently assaulted her by throwing her to the ground and jumping on her chest, legs and head. He made attempts to hide from the police and initially gave the police a false name. The victim sustained numerous serious injuries resulting in quadriplegia. The primary judge imposed a sentence of three years and 8 months’ immediate imprisonment.
Issues: It was submitted that the sentencing judge fell into error because the sentence was manifestly inadequate on the following grounds:
•
The maximum penalty for the offence;
•
The exceptionally serious nature of the injuries;
•
The serious nature of the offence and the circumstances in which it was committed;
•
The need for the sentence to reflect specific and general deterrence;
•
The respondent’s personal circumstances; and
•
The requirement that sentencing be consistent with the standards of sentencing set for offending of this nature.
Decision and reasoning: The Court allowed the appeal, set aside the sentence imposed by the sentencing judge and re-sentenced the respondent. The Court found that the respondent committed ‘a frenzied, savage and relentless attack upon a vulnerable, unarmed and defenceless woman’ ([68]). He inflicted serious injuries despite the victim’s repeated pleas for him to stop attacking her. Their Honours also highlighted that the victim was left permanently disabled with limited prospects of improvement. The respondent had a significant prior criminal history including previous convictions for violent offending against the victim. This history of violence indicated that he should not be afforded any leniency on the ground that he was of good character. Mitigating factors included the respondent’s plea of guilty, his remorse and acceptance of responsibility and the adverse effects of his troubled upbringing ([72]). Although the ongoing effects of his childhood deprivation may have diminished his moral culpability, the consequences of his behaviour rendered him a serious threat to women with whom he is or has been in a relationship. Their Honours therefore held that the initial sentence was not merely ‘lenient’ or ‘at the lower end of the available range’, but was unreasonable and plainly unjust. A sentence of seven years six months’ imprisonment was imposed.
NPA v The State of Western Australia [2018] WASCA 131 (2 August 2018) – Western Australia Court of Appeal
‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Social and psychological abuse’ – ‘Strangulation’ – ‘Totality principle’
Charges: Aggravated sexual penetration without consent x 5; Attempted aggravated sexual penetration without consent x 1; Threat to harm x 1.
Appeal type: Defendant appeal against sentence.
Facts: The appellant and complainant were in an ‘on again, off again’ relationship. The appellant was controlling, manipulative, and required the complainant to change her mobile phone number so that her family and friends could not contact her. There were two main occasions of sexual offending. On the first occasion, at a time where they had broken up, the appellant was invited to the complainant’s house. He held the complainant down and inserted his penis into her vagina ([11]). On the second occasion, the appellant entered the house uninvited. Over the next 8 to 9 hours, the appellant repeatedly raped the complainant, choked her, and smashed a TV remote over her head ([17]-[26]).
The appellant was convicted of the charges and was sentenced to a total effective sentence of 12 years’ 6 months imprisonment ([1]).
Issues: Whether the total effective sentence infringed the first limb of the totality principle by not reflecting the overall criminality.
Decision and reasoning: The Court held that the sentence did reflect the overall criminality. The Court referred to serious and aggravating factors including the maximum sentences, the repeated nature of the offences, the prolonged nature of the second occasion, the appellant using degrading and insulting threats towards the complainant and the appellant’s refusal to accept the complainant’s ending of the relationship ([52]).
Salkilld v State of Western Australia [2017] WASCA 168 (15 September 2017) – Western Australia Court of Appeal
‘Breach of protection order’ – ‘Breach of violence restraining order’ – ‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Remorse’
Charges: Making a threat unlawfully to kill x 1; Stealing x 1; Breach of protective bail conditions x 7; Breach of bail x 1; Breach of violence restraining order (VRO) x 8; Possession of property reasonably suspected to be stolen x 1; Fraud x 1; Breach of police order x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and respondent were in a relationship for about 3 weeks ([4]). The appellant had come home to find the complainant having sex with another man, which sparked a confrontation. The police issued the appellant with a police order preventing the appellant from approaching the property and complainant ([5]). The appellant returned to the property the same day and tried to force his way in ([6]). The complainant obtained a violence restraining order (VRO) against the appellant ([7]). Over a period of two days, the appellant called the complainant many times and sent text messages of a frightening nature, including threats to kill her ([15]-[19]). This conduct constituted a breach of the VRO subject of the appeal. The following day, the complainant repeatedly rode his motorcycle past the house while the complainant was inside ([21]). This conduct constituted a breach of the protective bail conditions subject of the appeal.
The sentencing judge imposed a head sentence of 2 years’ imprisonment ([45]).
Issues: There were 4 grounds of appeal:
1.
the sentence of 9 months’ imprisonment for the breach of VRO was manifestly excessive;
2.
the sentence of 6 months’ imprisonment for the breach of protective bail conditions was manifestly excessive;
3.
the head sentence infringed the principle of totality; and
4.
the judge erred in finding that the appellant was not remorseful
Decision and Reasoning: All four grounds were dismissed for the following reasons.
For ground 4, the appellant bore the burden of proof in establishing remorse on the balance of probabilities ([58]). While the appellant had expressed some level of responsibility for his actions, he displayed minimal victim empathy ([59]). It was open to the sentencing judge to find that the appellant demonstrated no remorse for the impact of his offending on the victim ([57]).
For ground 1, the breach was a sustained course of conduct and the messages were intended to terrify the complainant ([63]).
For ground 2, the breach was not an isolated breach and was intended to intimidate the complainant ([72]).
For ground 3, the sentence was well within the acceptable range ([87]).
Liyanage v Western Australia [2017] WASCA 112 (22 June 2017) – Western Australia Court of Appeal
‘Expert evidence’ – ‘Risk’ – ‘Social context evidence’ – ‘Social worker’
Charges: Manslaughter x 1.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant and the deceased were married. The appellant killed the deceased by striking him with a mallet [1]. The appellant gave evidence that the deceased was violent and controlling, and regularly sexually assaulted her [2]. She had no memory of the night on which she killed the deceased [47]. At trial, she was found not guilty of murder, but guilty of manslaughter [4]. She was sentenced to 4 years’ imprisonment [5].
Issues: The appellant appealed on several grounds including that the trial judge should not have excluded evidence from a social worker about domestic violence [7].
Decision and Reasoning:
All grounds of appeal were dismissed.
Social worker’s risk assessment evidence
The social worker’s risk assessment evidence was in relation to the psychological impact of prolonged exposure to domestic violence (popularly known as ‘battered women’s syndrome’). The evidence was based on a risk assessment which used actuarial risk assessment tools and clinical guides, including the ‘Power and Control Wheel’ (see Chapter 4 Context Statement) ([108]). The Court held that: the evidence did not explain the appellant’s state of mind ([123]-[129]); that the evidence did not quantify the extent of the risk, and did not specifically address the question of the risk of homicide ([130]-[148]); and the actuarial tools had not ‘been accepted by the relevant scientific community’ as defining the risk of homicide ([149]-[154]).
Social context evidence
The Court remarked that there is a body of academic literature that is supportive of ‘social context evidence’ in family violence cases ([160]). This may include evidence about the history of the parties’ relationship, the defendant’s culture, the non-psychological impediments to leaving a violent relationship ([160]-[165]). However, the Court emphasised that in order for contextual evidence to be admitted, counsel must ‘explain precisely and specifically how it is relevant to the issues which the jury are required to decide’ ([166]).
The social worker gave evidence in relation to the dangers of leaving a domestic violence relationship ([169]-[177]) and the exercise of power and control which characterises domestic and family violence ([178]-[183]). The Court held that the evidence was too general, and would not assist the jury beyond the knowledge and inferences able to be drawn by a reasonable person ([177],[183]).
McCoombe v The State of Western Australia [2016] WASCA 227 (20 December 2016) – Western Australia 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) – 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 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]).
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]).
The State of Western Australia v Stoeski [2016] WASCA 16 (19 January 2016) – 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) – 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.
X v Y [2015] WASCA 70 (13 April 2015) – Western Australia Court of Appeal
‘Expert witness’ – ‘Self-represented litigants’ – ‘Social worker’
Appeal type: Appeal against parenting orders.
Facts: The appellant father and respondent mother were in a de facto relationship. They separated when the appellant attacked the respondent’s father. The Family Court of Western Australia made parenting orders granting the appellant no time with the children. The appeal centred upon the report of a ‘single expert witness’, a social worker. The expert’s report stated that the children did not wish to spend time with the father due to his violence towards their grandfather and his verbal abuse towards the children themselves ([25]).
Issues: Whether the magistrate erred in law by failing to take into account relevant matters and finding that the single expert witness was qualified as a witness.
Decision and Reasoning: The appeal was dismissed. The Court summarised the principles applicable to Family Court appeals at [61]-[64]. In relation to the evidence of the social worker, the Court held that it was open to the magistrate to admit the evidence: “[although] he was not a clinical psychologist, the nature of his expertise was known to the parties when the court ordered, by consent, that he be the single expert witness in the proceedings” [126].
Oxenham v The State of Western Australia [2015] WASCA 30 (18 February 2015) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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) – 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]).
Note: the High Court refused special leave to appeal (see Hellings v The Queen [2005] HCATrans 255 (27 April 2005)).
Atherden v The State of Western Australia [2010] WASCA 33 (26 February 2010) – 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).
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).
Lydon v Lydon [2008] WASCA 8 (8 February 2008) – Western Australia Court of Appeal
‘Elder abuse’ – ‘Emotional abuse’ – ‘Expert evidence’ – ‘Meaning of emotional abuse’ – ‘Protection order’ – ‘Provocation’ – ‘Sibling abuse’ – ‘Threat to kill’
Proceedings: Protection order appeal.
Facts: The appellant man was the respondent to a protection order protecting his mother and sister. The appellant resided in a shed adjacent to the mother’s home, which his sister frequently visits. All parties are in dispute in relation to the deceased father/husband’s estate, discussions in relation to which resulted in the allegations of emotional abuse upon which the protection order was granted. The brother stood in his sister’s way, blocking her from leaving, got in her face, poked her in the chest and shouted at her and her mother. There was an allegation that on at least one occasion he made a threat to kill his sister. The order included terms that the appellant not contact the other parties or enter the house.
Issue: Whether provocation defence applies to application for restraining order; Whether finding of emotional abuse requires supportive expert testimony.
Decision and Reasoning: Appeal dismissed.
The argument that provocation was required to be considered was misconceived as the Magistrate’s decision was founded on emotional abuse.
Le Miere AJA held that:
[49] Emotional abuse is not defined in the Act. Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent that, being directed at a specific person, annoys, alarms or causes substantial emotional distress to that person.
[50] There are two aspects to emotional abuse. The first is the adverse impact upon another person's emotional wellbeing. The second is the behaviour that causes the negative impact upon the emotional wellbeing of another.
And:
[57] It is open to the court to be satisfied that a person has behaved in an ongoing manner that is emotionally abusive towards another person without the benefit of any psychiatric or psychological evidence. Behaviour that is emotionally abusive is behaviour that is reasonably capable of adversely impacting upon another person's emotional wellbeing. This does not require psychological or other expert evidence.
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]).
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]).
The State of Western Australia v Anderson [2004] WASCA 157 (29 July 2004) – 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]).
Note: the High Court refused special leave to appeal (see Hellings v The Queen [2005] HCATrans 255 (27 April 2005)).
Owen v Jilba [2002] WASCA 283 (17 October 2002) – 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) – 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) – 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) – 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) – 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) – 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.
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.
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.
Vickers v Bailey [2000] WASCA 136 (19 May 2000) – 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.
Gallegos v R [1999] WASCA 191 (6 October 1999) – Western Australia Court of 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”.