AIJA Benchbook

Western Australia

Supreme Court

Read v DPP (WA) [2024] WASC 10 (19 January 2024) – Western Australia Supreme Court

‘ Appeal against sentence’ – ‘ Manifestly excessive’ – ‘ Strangulation/choking’ – ‘ Physical violence and harm’ – ‘ Damaging property’ – ‘ Mitigating factors’ – ‘ Suspended sentence’

Charges: Aggravated assault causing bodily harm x 1; aggravated criminal damage x 1; aggravated strangulation x 1.

Proceedings: Appeal against sentence.

Facts: The male appellant and female victim were in a de facto relationship for approximately two years, residing together six months prior to the offending. At random, the appellant physically assaulted the victim, punching, kicking and strangling her as she returned home one night. The victim was able to contact the police before the appellant destroyed her phone. [11]–[14] In August 2023, the appellant entered guilty pleas and was sentenced to immediate 15 months’ imprisonment.

Grounds of Appeal: The appellant appealed the sentence, raising the following grounds of appeal:

The Magistrate erred in failing to properly regard the principles to suspend a term of imprisonment;

The total effective sentence was manifestly excessive.

The Magistrate erred in failing to give adequate weigh to the appellant’s personal circumstances (e.g., PTSD-diagnosis and persistent depressive and attachment disorder)

Decision and Reasoning: Leave to appeal refused. Appeal dismissed.

Justice Whitby upheld the Magistrate’s decision not to suspend the term of imprisonment imposed on the appellant. [41] Justice Whitby acknowledged significant mitigating factors present in the appellant’s case, including the appellant’s good character and rehabilitative prospects and the anomalous nature of the offending. [42] However, the appellant’s offending occurred in an intimate relationship, whereby ‘general deterrence is an important sentencing consideration’: [45]

The nature of the offending was extremely serious, as recognised and referred to by the learned Magistrate. In such circumstances, the need for denunciation of this type of offending and general deterrence looms large. In determining the appropriate sentencing option, there is the need to demonstrate the condemnation of the community for offences of this kind. It means that the personal circumstances of the offender carry less weight [46]

Accordingly, it was reasonably open to the Magistrate to be positively satisfied that a suspended imprisonment sentence was not appropriate. [47]

Having regard to the totality principle, Whitby J upheld the total effective sentence of 15 months’ imprisonment was not manifestly excessive:

The learned Magistrate, correctly in my view, recognised the seriousness of the appellant’s offending. The appellant kicked and stomped on the victim and repeatedly applied pressure to the victim’s throat [63]

Lastly, Whitby J dismissed the appellant’s third ground of appeal, finding the Magistrate to have properly considered the role of the appellant’s mental health disorder in the context of his offending. [79] According to Whitby J, the appellant was a person ‘clearly able to exercise control and judgment in the past’ such that his mental health was not the cause of his offending.

Supljeglav v DPP (WA) [2023] WASC 453 (29 November 2023) – Western Australia Supreme Court

‘ Appeal against sentence’ – ‘ Strangulation/choking’ – ‘ Physical violence and harm’ – ‘ Exposing children to domestic and family violence’ – ‘ Inconsistent verdict’

Charges: Assault occasioning bodily harm x 2; common assault x 1; endangering the life, health or safety of a person x 1.

Proceedings: Appeal against conviction.

Facts: In May 2023, the male appellant was convicted and sentenced to seven months’ imprisonment for assaulting his wife. [1] The appellant was acquitted of common assault and endangerment, following the Magistrates’ concerns with inconsistencies in the complainant’s evidence. [2]

Grounds of Appeal: The appellant appealed the sentence on two grounds:

The guilty verdicts with respect to assault occasioning bodily harm are inconsistent with the not guilty verdict with respect to the common assault and endangering life charges

The guilty verdicts were unreasonable and not supported by the evidence adduced at trial.

Decision and Reasoning: Leave to appeal refused. Appeal dismissed.

With respect to ground one, Justice Tottle reviewed the relevant legal test concerning inconsistent verdicts: ‘whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness’. [31] In so doing, Tottle J upheld the Magistrates’ treatment of the complainant’s evidence; namely, the Magistrates’ rejection of certain aspects of the complainant’s evidence and acceptance/reliance on others [38] finding that the consequent inconsistency in the verdicts did not meet the ‘high hurdle’ raised by this ground of appeal.

With respect to ground two, Justice Tottle upheld the Magistrates’ approach to fact-finding. Having regard to the totality of the evidence, the case was not one in which ‘the Magistrate must have entertained a doubt about the appellant’s guilt’. [48]

Arkeveld v DPP (WA) [2023] WASC 264 (17 July 2023) – Western Australia Supreme Court

‘ Appeal against conviction’ – ‘ Following, harassing and monitoring’ – ‘ Breach of protection order’ – ‘ Miscarriage of Justice’

Charges: Breaching a protection order x 6; aggravated stalking x 1.

Proceedings: Appeal against conviction.

Facts: The appellant pleaded guilty to six charges of breaching a protection order and a single charge of aggravated stalking in the Magistrates’ Court. The offending occurred between April and October 2021, against the appellant’s former female partner (‘complainant’). The complainant ended the relationship in March 2020, and obtained a protection order against the appellant in June 2020. [5] The appellant breached this order, contacting the complainant via social media and phone calls. [8]

Grounds of Appeal: The appellant appealed the convictions by reason of ‘coercive influence, unsound mind and unsounded legal advice’. Justice Lundberg collectively interpreted these ground as constituting an allegation of a miscarriage of justice. [3]

Decision and Reasoning: Leave to appeal refused and appeal dismissed.

Justice Lundberg found ‘no evidence … to support an assertion that the appellant was coerced or pressured into entering’ guilty pleas. [49] Equally, Lunberg J found no medical evidence to demonstrate that the appellant was of unsound mind at the time of entering guilty pleas: [50]

But even assuming, favourably to the appellant, that the appellant was suffering from these illnesses at the time, it remains for the appellant to demonstrate that his pleas entered on 12 April 2022 were somehow influenced by these matters or that he was unable to understand the effect of entering such pleas. There is no positive assertion made by the appellant to this effect. Nor could one sensibly be put. The charges were not complex and were constituted by the conduct described in the proceedings before the magistrate. There is no indication on the transcript that the appellant was confused about the conduct or the charges. And there was no doubt the appellant was bound by the [protection order] which was identified in the charges [52]

Kritskikh v Director of Public Prosecutions [2022] WASC 130 (21 April 2022) – Western Australia Supreme Court

‘Admissibility of evidence’ – ‘Appeal against conviction’ – ‘Body-worn camera footage’ – ‘Credibility’ – ‘Evidence act 1906 (wa) ss 37 and 39g’ – ‘Failure to consider family violence provisions’ – ‘Failure to have regard to the dynamics of family violence’ – ‘Female perpetrator’ – ‘Intoxication’ – ‘Previous incident of family violence’ – ‘Self defence’ – ‘Self-defence’ – ‘Significance of being first reporter of incident’ – ‘Victim as (alleged) perpetrator’

Charges: Aggravated assault causing bodily harm x 1.

Proceedings: Appeal against conviction.

Issues:

Whether the court’s reasoning was consistent with how a jury would be directed in respect of the family violence provisions

Whether evidence relevant to the appellant’s degree of intoxication was wrongly excluded

Facts: The female appellant and Mr Williams were in a de facto relationship [19]. On the night of 1 December 2020, after the appellant and Mr Williams had attended a work function, Mr Williams formed the view that he ought to drive the appellant home because she was intoxicated, and carried her to his car. While Mr Williams was driving, the appellant allegedly attempted to take hold of the steering wheel, before punching and kicking Mr Williams. In response, Mr Williams repeatedly pushed the appellant away forcefully, making contact with her face. Mr Williams then called the police, who took photos of his injuries [4]-[8]. The appellant was found guilty by a Magistrate, and appealed on the following grounds:

Firstly, that the learned magistrate erred by excluding relevant evidence.

Secondly, that the magistrate erred by reasoning in a manner that was inconsistent with the family violence provisions of the Evidence Act 1906.

Decision and Reasoning: The appeal was allowed, with orders setting aside the convictions and ordering a retrial.

Justice Hall found that grounds 3, 4 and 5 were made out because the Magistrate ‘failed to address the issue of self-defence and reasoned in a way that was inconsistent with the family violence provisions’ [126]. ‘The circumstances of this case required that express consideration be given to self-defence and that, in dealing with that issue, the reasons be consistent with s 39E and s 39F.’

His Honour stated that self-defence was an issue due to ‘evidence of the appellant being forced against her will into the car, the evidence of the significant injuries sustained by the appellant during the incident and the evidence of the prior incident of family violence’ [112].

In considering the credibility and reliability of the evidence given by the appellant and Mr Williams, the Magistrate made the following findings:

Because Mr Williams had called the police in relation to both the current and previous altercations between the couple, his credibility was enhanced, and it was less likely that he had been the aggressor on those occasions.

‘[T]he claim by the appellant that she had previously been the victim of domestic violence lacked credibility because she had not made a complaint about that earlier incident until after she was charged with the present charges’ [122].

The Court found that in making these findings the magistrate failed to have regard to the dynamics of family violence (s 39F). In particular, the fact that victims of family violence often do not make reports to police. Instead, ‘the magistrate relied on the delay in the appellant reporting the earlier incident of family violence to impugn’ her credit [115]. Therefore, the magistrates’ findings were inconsistent with s 39F [124].

In respect of the second ground of appeal, Justice Hall stated:

‘The body worn camera footage was potentially cogent evidence of the appearance and condition of the appellant close in time to the alleged incident. The relevance of that evidence was that it went to the question of how intoxicated the appellant was. This was, as the magistrate noted, a matter of significance both to the likelihood that the appellant had behaved in the way alleged and in regard to the reliability of her memory of the events’ [134]. Therefore, ‘the magistrate was in error in excluding it’ [136].

Sellenger v Turner [2021] WASC 308 (7 September 2021) – Western Australia Supreme Court

‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Economic and financial abuse’ – ‘Exposing children to domestic and family violence’ – ‘Following, harassing and monitoring’ – ‘History of domestic and family violence’ – ‘Separation’ – ‘Stalking’ – ‘Totality principle’

Charges: Breach of protection order x 2, stalking x 1.

Proceedings: Applications for extension of time and leave to appeal against sentence.

Facts: The 29-year-old male appellant and female victim had been in a relationship for 6 months. When the relationship ended, police protection orders were served on the appellant with a condition that the appellant not go within 100m of where the protected person lives or works. In contravention of the orders, the appellant followed the victim while driving and made repeated attempts to contact her via phone. The appellant also attended the victim’s workplace. The appellant also deposited small amounts of money in the victim’s bank account. He was charged with breaches of the orders and with stalking. The appellant pleaded guilty to the charges and was sentenced to 14 months' imprisonment. The appellant appealed on the ground that the sentence imposed infringed the first limb of the totality principle [4].

Decision and Reasoning: Applications for extension of time and leave to appeal against sentence allowed, appeal dismissed.

Justice Strk found that the breach of the protection order was serious, occurring within 24 hours of the order having been served, by deliberate and repeated conduct. Her Honour noted that the victim felt intimidated by the appellant’s behaviour including his deposits of money in the victim’s bank account after their separation [100]. Her Honour explained that because the offences had not overlapped, it was not inconsistent with the totality principle that the sentences be served cumulatively [97], [105], [107]. Her Honour noted the appellant’s ‘troubling history of similar offending… which made personal deterrence a significant factor in sentencing’ [108], and the fact that the appellant’s guilty plea was the only mitigating factor [109]. Her Honour repeated the sentencing Magistrate’s remarks on the victim impact statement, which detailed the significant and lasting psychological impact of the offending on the victim and her 10-year-old daughter [40].

Pedrochi v Brown [2021] WASC 81 (25 March 2021) – Western Australia Supreme Court

‘Aggravated assault occasioning bodily harm’ – ‘Application for leave to appeal against sentence’ – ‘Manifest excess’ – ‘Strangulation’

Charges: Aggravated assault occasioning bodily harm x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male appellant strangled his female partner until it was hard for her to breathe, and punched her in the face, causing significant bleeding from her left eye. He told her: “You did this. I didn’t do this.” The appellant was convicted, following trial, and sentenced to 2 years and 6 months imprisonment with eligibility for parole.

Grounds of appeal:

The sentence was manifestly excessive.

The magistrate erred in her calculation of the date on which the appellant's sentence was to be backdated (out by 4 days).

Held: Application for leave to appeal granted on both grounds but appeal only allowed in part to correct a mathematical error in sentencing (vary date of commencement from 21 to 17 August 2019).

Ground 1 alleging manifest excess was rejected. While the sentence was at the top of the range of appropriate sentences, it was not unreasonable or plainly unjust. The offence was extremely serious: “unprovoked, sustained and vicious.” Little could be said by way of mitigation, with the applicant’s complete lack of remorse or acceptance of responsibility. General deterrence is an important sentencing consideration in family violence offences. In particular at [62]-[63]:

“It is characteristic of offences of this kind that they involve significant power imbalances (as the offence in this case did), that they are committed behind closed doors (as the offence in this case was) and that they are accompanied by lies and gas lighting (as the offence in this case undoubtedly was).

These features underscore the need for the courts, in imposing sentences commensurate with the seriousness of the offence in each case and applying all relevant sentencing principles, to send a strong signal that violence of this kind is intolerable and will be dealt with accordingly. The “firming up” of sentences for such violence, referred to in Duncan v The Queen [2018] WASCA 154, reflects that need.”

In addition, the court emphasised at [64] that:

“offences involving strangulation are particularly serious. As [the magistrate] said “a case of non-fatal strangulation … is extremely serious” and that “the courts now recognise how serious that action is.” In my view, her Honour can here be taken to be referring to the growing appreciation of the particular dangers associated with offences involving strangulation and with the role they play in cases of intimate and family violence. That recognition has, of course, led to legislative action, introducing a specific offence of suffocation or strangulation. That offence was, of course, not in existence at the time of the appellant’s offending against Ms Hallam. Nevertheless, as the learned Magistrate recognised, the recognition of the seriousness and danger of non fatal strangulation predated those legislative reforms and was a relevant sentencing consideration.”

Ground 2 upheld but only to correct the date from which the sentence commenced from 21 August 2019 to 17 August 2019.

Hill v Tomkin [2021] WASC 54 (3 March 2021) – Western Australia Supreme Court

‘Act causing bodily harm’ – ‘Appeal against sentence’ – ‘Glassing’ – ‘Imprisonment’

Charges: Act causing bodily harm x 1.

Proceedings: Appeal against sentence.

Facts: The male appellant and the female victim had been in a domestic relationship but had lived separately for 7 months. The appellant and the victim had a verbal argument through the glass window pane of a side door. The appellant punched the glass window pane, causing the glass to break and strike the victim on her face, resulting in injuries requiring medical attention including stitches. The appellant pleaded guilty on the first morning of trial and was sentenced to 10 months immediate imprisonment, with eligibility for parole.

Grounds of appeal:

The magistrate erred in the calculation of the discount afforded for the guilty plea.

The magistrate erred in failing to take into account any factor in mitigation other than the guilty plea.

The magistrate erred in imposing a sentence of imprisonment when a sentence of last resort was not warranted.

The magistrate erred in imposing a sentence of immediate imprisonment when it was not inappropriate to suspend the sentence.

Held: Appeal was upheld on grounds 3 and 4, and the appellant re-sentenced by way of a community based order.

The injuries sustained by the complainant were severe but was not comparable to “glassing” distinguishing: “[a] glassing involves an intentional breaking of a glass into a person’s face with the obvious potential for very severe injury. The appellant’s act involved the appellant breaking a window in a momentary loss of control with no intention of causing harm to the complainant.”

Ground 4: The term of immediate imprisonment was manifestly excessive having regard to sentences imposed in other cases and factors mitigating the seriousness of the offence (absence of weapons and intention to cause injuries suffered, impulsivity and lack of foresight of the consequences, no threats of violence, and isolated nature of the act). The appellant was also remorseful, had no history of violence or violent offending and had positive antecedents. Further, on Ground 3: It was not open to impose a sentence of imprisonment. A term of imprisonment greater than 6 months would not have been appropriate.

Dickerson v The State of Western Australia [2020] WASC 425 (18 November 2020) – Western Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail application’ – ‘Exceptional circumstances’ – ‘Female perpetrator’ – ‘Protection order’ – ‘Rehabilitation’ – ‘Victim as (alleged) perpetrator’

Charges: Aggravated unlawful wounding x 1; Breach of protective bail conditions x 1.

Proceedings: Application for bail.

Facts: The female applicant was awaiting trial for an aggravated unlawful wounding charge against her male ex-partner, the complainant, intending to argue she acted in self-defence. She had pleaded guilty to and was awaiting sentence for a breach of protective bail conditions charge. These conditions had prevented the applicant having any contact with the complainant but she submitted he had forced her to see him. While remanded in custody, the applicant’s ex-partner had tried to contact her, but she had refused. She had obtained a Family Violence Restraining Order protecting her from the complainant. She had taken steps towards rehabilitation, including drug and alcohol rehabilitation following an earlier breach of bail conditions for consuming alcohol.

Issues:

Whether there were exceptional reasons why the accused should not be kept in custody.

Whether the grant of bail would otherwise be proper, having regard to other factors the court must consider under cl 1 and cl 3 of Sch 1 Pt C of the Bail Act 1982 (WA).

Decision and reasoning: Bail granted.

Issue 1: There were exceptional reasons why the applicant should not be kept in custody. The breach of protective bail conditions charge was towards the lower end of seriousness for offending of its kind, particularly so “if it is accepted, in due course, that the applicant felt under pressure to go with the complainant. It was, in any event, the complainant who initiated the contact on that occasion”. There was no suggestion that the applicant was violent or intending to interfere with the complainant as a witness ([90]-[93]).

Further, the applicant had demonstrated a concerted effort to engage in rehabilitation. It was particularly significant that she had engaged in alcohol and drug rehabilitation after she was sentenced for an earlier breach of bail due to consuming alcohol ([94]-[95]).

In addition, it was significant that the applicant had refused to have contact with the complainant while remanded in custody, even though she was permitted to do so. The court noted at [96]:

“It is an irony in matters of this kind that a person who is remanded in custody for having breached a condition that prevented contact with a complainant is not prohibited from having contact with the complainant once they are in custody”.

And continued at [97]:

“Of course, in circumstances in which the applicant is well aware that she may put her prospects of being released on bail at risk if she were to have contact with the complainant, one might understand that she would exercise caution in that regard. However, the applicant has gone further. She has made an application and been granted the FVRO to prevent the complainant, Mr N, from having contact with her or approaching her. In other words, she has taken positive steps to give effect to the purpose to which cl 2(c) and (d) of sch 1 pt D of the Act are directed. That, it seems to me, is an unusual situation which, in combination with the applicant’s steps towards rehabilitation and the hardship that she will be required to endure if she remains in custody in the metropolitan area while her mother and her young child remain in Carnarvon, does amount to exceptional reasons why the applicant should not be kept in custody”.

Issue 2: The conditions outlined at [100]-[108] were sufficient to guard against the risk that the applicant would commit a further offence or would either endanger or interfere with the complainant as a witness in these proceeding ([109]).

S v Barnes [2020] WASC 327 (11 September 2020) – Western Australia Supreme Court

‘Application for leave to appeal against conviction’ – ‘Defence of provocation’ – ‘Domestic violence’ – ‘Social media confession’ – ‘Strangulation’ – ‘Victim as (alleged) perpetrator’

Charges: Aggravated common assault x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: The male appellant admitted to assaulting his female partner; the sole issue at trial was whether the assault was unlawful. The complainant and appellant had a ‘prolonged and heated argument’ regarding the complainant buying plants and because the appellant refused to leave the TV room so that the children could watch TV. The context proceeding the assault included: the complainant slapping the appellant and trying to pull him off the couch where he was sitting; the complainant threatening to smash a hard disk drive unless the appellant left the TV room and when he did not leave throwing the hard disk drive against the wall; the complainant threatening to smash a PlayStation device and, when the appellant refused to leave the room, smashing it on the floor; the complainant kicking the appellant to try and force the appellant off the couch and allegedly saying ‘If you don’t do as I say, you’ll never see your son again’.

The appellant then grabbed the complainant around the neck with his right hand and squeezed her throat. The complainant collapsed and lost consciousness. The appellant’s evidence was that after she regained consciousness, she immediately started hitting him again. The complainant’s evidence was that she left the room but returned some minutes later and punched the appellant in the face. The appellant recounted these events two months after the incident in an extended Facebook post.

Grounds: (1) In making an assessment of the severity of the provocation, the magistrate failed to assess the totality of the complainant’s conduct.

Decision and reasoning: Leave to appeal refused.

It is clear from the magistrate’s reasons as a whole, and particularly the following passages, that the magistrate considered the totality of the complainant’s conduct:

[60] “To say to a person in the course of an argument, ‘You will never see your child again’ if it was said, and I’m assuming that it was, is an unpleasant thing to say, and I would expect that it would have an effect on any father. It would make anybody angry, in my view, or perhaps more angry than they already were. But applying what was said in paragraph 35 of the Hart case which is been brought to my attention, I do not accept that saying that would be sufficient to cause a reasonable person to lose control to such an extent as to choke the person who said it into unconsciousness.

Many things get said in the course of heated domestic arguments; I don’t consider that it can be said to justify such an extreme response. Although there is no medical evidence on the subject, I am sure that to choke a person into unconsciousness requires a considerable force and sustained over a period of time. It’s a requirement of provocation defences the force used must not be disproportionate to the provocation which is offered, and my view, this force which I have been talking about clearly is disproportionate.

[61] … So at the end of the day, I am satisfied that the conduct of the complainant may well have provoked the accused to some extent, that it may well have provoked him to lose control and act on the sudden. But I do not consider that her conduct was sufficiently provocative in all of the circumstances to justify an assault of this magnitude and of this seriousness. And I am of the view that choking her into unconsciousness was clearly disproportionate to any provocation that she may have offered.

Had I concluded that the magistrate had erred in any of the respects alleged by ground 1, I would have granted leave to appeal but dismissed the appeal on the basis that there had no substantial miscarriage of justice. In my judgment looking at the totality of the evidence and, for the purpose of the objective element of the defence of provocation, attributing to the ordinary reasonable person each of the characteristics identified by the appellant in ground 1, the prosecution discharged the burden on it to negative the defence of provocation. Faced with the provocation offered by the complainant as described by the appellant in the Facebook post, an ordinary reasonable person would not have ‘choked out’ the complainant.”

Stockley v Bailey [2020] WASC 193 (8 June 2020) – Western Australia Supreme Court

‘Aggravated home burglary’ – ‘Application for leave to appeal against sentence’ – ‘Breaches of protection order’ – ‘Controlling, jealous, obsessive behaviour’ – ‘Following, harassing and monitoring’ – ‘Guilty pleas’ – ‘History of domestic violence’ – ‘Separation’ – ‘Stalking’ – ‘Weapon’

Charges: Breaching a family violence restraining order x 6; possessing a controlled weapon x 1; aggravated home burglary x 1; deprivation of liberty x 1

Case type: Appeal against sentence

Facts: In February 2020, the applicant man was sentenced to 7 months’ imprisonment following his conviction after guilty pleas to 6 offences of breaching a family violence restraining order (FVRO) and one offence of possessing a controlled weapon. Three days earlier the applicant was sentenced, following a guilty plea, to 3 years’ imprisonment in relation to a charge of aggravated home burglary and deprivation of liberty. These offences occurred at the same time as one of the FVRO offences and the possession of the controlled weapon, and the day before another two of the FVRO offences.

The applicant man and female victim were in a relationship which ended around April 2019. On 26 May 2019, the applicant was served with the FVRO which prohibited him from, among other things, communicating or attempting to communicate with the victim. Approximately 2 hours after being served, the applicant sent a series of 88 text messages to the victim. He was arrested, charged with breaches of the FVRO and released on bail. Several days later the applicant entered the victim’s house, pointed a replica pistol at her, forced her into his car and handcuffed her. That night, the pair discussed their relationship and had consensual sex. The applicant continued calling the victim and told her that he had entered her house again and accessed her Facebook account. He also repeatedly approached the victim on her commute home, including getting into her vehicle with her. The applicant was eventually arrested near the victim’s home, and police searched his premises and located the replica firearm. The applicant had a modest criminal record, including convictions for breaching restraining orders and assault.

Grounds:

7 months' imprisonment was manifestly excessive; and

the total sentence of 3 years, 7 months was disproportionate to the overall criminality involved and the total sentence was crushing.

It was also argued that the learned magistrate failed to give sufficient weight to his early guilty pleas, his lack of a relevant record and reasonably good antecedents, his efforts at rehabilitation, and his mental health at the time of his offending, which had been treated at the time of sentencing.

Held: Leave to appeal granted, appeal dismissed.

Ground 1 was not established. The applicant’s breaches of the FVRO were not minor or technical. Rather, he repeatedly refused to obey the order which was imposed for the victim’s protection, and flagrantly disregarded both the authority of the court and the rights of the victim ([56]). The offences were serious as they involved the applicant entering the victim’s home on two separate occasions (one of which involved a replica pistol and handcuffs), and following her on the train home. These breaches were terrifying for the victim who believed that she was going to be murdered. The offences were further aggravated by the fact they were committed when the applicant was on bail for earlier breaches of the FVRO ([57]). However, Hill J noted that the Magistrate did not comply with s 9AA(5) Sentencing Act by failing to state the extent of the reduction given for his guilty plea ([70], [85]), but this did not result in the applicant’s sentences being overturned ([71]). Hill J also found that the Magistrate took the applicant's antecedents and mental health issues into account. It was clear that the Magistrate considered that the applicant’s mental health issues were not such that he was an unsuitable vehicle for personal and general deterrence ([74]-[75]).

In relation to Ground 2, Hill J found that the total effective sentence was neither unreasonable nor plainly unjust, and was not crushing ([82]-[84]). Any error made by the Magistrate did not result in a substantial miscarriage of justice ([91]).

Hosking v The State of Western Australia [2020] WASC 167 (20 May 2020) – Western Australia Supreme Court

‘Bail application’ – ‘Controlling behaviours’ – ‘Physical violence and harm’ – ‘Risk of reoffending’ – ‘Separation’ – ‘Step-child in the family’ – ‘Weapon’

Offences: Breach of Police Order x 1; Common assault x 1; Assault causing bodily harm x 1; Being armed in a way that may cause fear x 1.

Proceedings: Bail application

Issue: Whether the applicant might reoffend if released from custody; whether there were conditions that could be reasonably imposed if bail were granted to ameliorate the risk of reoffending.

Facts: The male applicant and female victim were married for 11 years and had three children. The victim also had another child (Ryan) from a previous relationship. One night at the family residence, the applicant pushed Ryan in the chest, causing him to stumble backwards, then punched him in the face. A 72-hour police order was served on the applicant following this incident which prohibited him from entering or remaining within 10 metres of the residence, from going within 10 metres of the victim, and from acting in a violent or intimidating manner towards her. The night following the incident, the applicant entered the residence. An altercation ensued in which the applicant pushed the victim to the ground, punched her in the head and kneed her in the head and body, for which she required medical attention. A Mr Ledgerton was at the residence and intervened to protect the victim. The victim left the house. The applicant then armed himself with a knife and went out to the front drive where he threatened Mr Ledgerton and a neighbour with the knife.

The applicant plead guilty to breaching the police order but not guilty to the remaining charges and was remanded in custody. The applicant applied for bail for the charged offences, but this was refused by the Magistrate on grounds of the seriousness and nature of the alleged offending, the fact that the applicant had breached a police order shortly after it was made, and fears by the victim (and concerns by the police) that the applicant posed a risk to the victim and her children. The applicant subsequently applied for bail again after the victim visited him in custody, but the Magistrate again refused on the basis that the prosecution case was strong and no conditions could be imposed that would ameliorate the risk of offending in a violent manner or interfering with witnesses. The applicant then applied for bail a third time.

Judgment: The judge granted bail subject to several conditions which His Honour stated would "sufficiently remove the possibility of the applicant reoffending" [8]. These conditions included: curfew and reporting conditions; conditions to protect the victim, Ryan, Mr Ledgerton and the neighbour from contact by the applicant; and conditions regulating the applicant’s conduct with his children [20].

The respondent opposed the bail application because there was a risk the applicant would reoffend if released [8]. However, the victim submitted an affidavit to the court stating that she wanted the applicant to be released on bail [7]. The affidavit provided that: the victim did not resile from any of the allegations made; during the relationship, the applicant engaged in controlling behaviours that caused the victim distress; and the applicant continued to telephone her while in custody causing her more stress [16]. However, the affidavit also provided that the applicant’s alleged conduct was out of character and the victim wanted bail to be granted because she was concerned that the applicant’s continued detention would adversely affect his relationship with his children and make it more difficult for her to establish a new life [16].

His Honour had reservations about the victim’s change in attitude [7] but granted bail due to a number of factors including: accommodation and employment arrangements that had been made for the applicant; the likely length of any sentence that would be imposed if he were convicted; the likely time until trial (next year); the incentive he had to abide by his bail undertakings (ie: access to his children); the time since the alleged offending occurred; the victim’s attitude (she expressed a wish that the applicant be granted bail and had visited him in custody with two of her children); and evidence concerning the applicant’s behaviour at the time of the offending (the behaviour occurred in a particular context that no longer prevailed – the applicant now accepted that the relationship was over) [7], [12].

Riddoch v Chiera [2020] WASC 114 (7 April 2020) – Western Australia Supreme Court

‘Aggravating factor’ – ‘Children’ – ‘Coercive control’ – ‘Manifestly excessive’ – ‘Miscarriage of justice’ – ‘Non-fatal strangulation’ – ‘Physical violence and harm’

Charges: Aggravated assault causing bodily harm x1;

Appeal type: Application for leave to appeal against sentence

Grounds:

The magistrate's conduct during the sentencing hearing did not allow defence counsel to make full submissions as to the appellant's personal circumstances and the nature of the relationship between the appellant and complainant, which hindrance resulted in a miscarriage of the sentencing exercise; and

The type of sentence imposed was manifestly excessive as it was reasonably open to His Honour, in all the circumstances, to suspend the term of imprisonment imposed. Particulars:

The plea of guilty and the relevance of the discount for that plea;

The appellant's antecedents;

Sentences imposed in, broadly, comparable cases;

The prosecution's concession as to the type of sentence open to the Court.

The learned Magistrate erred when he failed to adequately consider the imposition of a type of sentence less than one of immediate imprisonment.

Facts: The male appellant and female victim had been in a domestic relationship for six years and had a child together. At the time of offending, the victim and appellant were arguing in a car while the child was in the backseat. During the argument, the victim pulled over to the side of the road out of fear of the appellant and ask him to get out of the car. The appellant then punched the victim to the upper-left arm and grabbed her and squeezed her arm. He then "punched the victim to her left breast and the left side of her stomach". The appellant continued to assault the victim until he hit her head against a window and strangled her until she could not breathe.

The appellant entered a plea of guilty and was sentenced to 14 months’ imprisonment. The magistrate declined to suspend the term.

Judgment: The first ground was dismissed; as the Magistrate was not discourteous and did not prevent the plea from being made, the contention was without foundation. McGrath J observed that “His Honour directly challenged counsel as to whether a submission was effectively being made that the victim was to blame. Counsel then positively engaged with the judicial officer, clarifying the submission.” [26]

The second ground of appeal was also dismissed; it was noted that the sentencing judge "carefully reviewed all relevant sentencing factors" and only after doing so correctly concluded that imprisonment was the only appropriate punishment [37-8].

The third ground was also dismissed. McGrath J found the domestic relationship and presence of young children to be aggravating factors and thought the 15% discount afforded for the guilty plea by the sentencing judge was appropriate. After placing minimal weight on the offender’s personal circumstances, such as his age, as mitigating factors, the Court concluded that the sentence was not manifestly excessive.

Clarke v Cantatore [2019] WASC 385 (28 October 2019) – Western Australia Supreme Court

‘Aggravating factor’ – ‘Assault’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Strangulation’ – ‘Totality’

Charges: Aggravated administration of a noxious thing to another person x 1; Aggravated common assault.

Proceedings: Appeal against sentences

Facts: The appellant and the complainant had, at the time of the allegations, been in a relationship for approximately five years and were engaged to be married. The appellant verbally abused the complainant and threw her onto the bed. The complainant managed to kick the appellant off her and the appellant threw items around the room. The complainant’s attempt to use pepper spray to keep the appellant away only angered him further. He picked the complainant up by her neck and jaw before throwing her back a couple of metres into the fridge. The accused hit the complainant against the fridge again, causing her to drop to the ground in pain. When she stood up again the accused sprayed the back of her neck with pepper spray.

The appellant was sentenced to 12 months imprisonment and was made eligible for parole.

Issues: The appellant appealed on grounds the sentences were manifestly excessive and that the magistrate erred in ordering the sentences be served cumulatively and that the total sentences should not be suspended.

Decision and reasoning: Jenkins J held that the magistrate had correctly balanced the appellant’s personal circumstances including the domestic relationship with the complainant and repeated significant force against any aggravating factors and that the sentences were therefore not manifestly excessive. The total effective sentence was held to be plainly unjust given the offending was close in time and in one incident, the appellant had good prospects of rehabilitation, and had never been sentenced to imprisonment or convicted of violent offending previously. There was no error in choosing not to suspend the sentences.

RE Magistrate G Benn; EX Parte Gethin [2019] WASC 380 (15 October 2019) – Western Australia Supreme Court

‘Application for review order’ – ‘Cyber stalking’ – ‘Interim fvro’

Case type: application for review of an interim FVRO

Facts: The respondent was granted an interim FVRO based on allegations in an application, affidavit and oral evidence that his sister(the applicant) was communicating in an intimidating and abusive manner by phone calls, text messages and emails in a manner consistent with the meaning of ‘cyber-stalking’. The communications related to the way in which he was caring for their father, who was in a nursing home. The applicant submitted that the magistrate applied the wrong meaning of the term ‘family violence’ and there was no evidence of any act that could arguably constitute ‘family violence’ within the correct definition under the Restraining Orders Act 1997 (WA), arguing that the magistrate therefore lacked jurisdiction to grant the FVRO, or alternately that her application be treated as an appeal.

Issue: Did the magistrate apply the wrong meaning of ‘family violence’

Held: The magistrate did not make an error in jurisdiction by applying the wrong definition and the application for review was dismissed. The application, supporting affidavit and oral evidence heard all disclosed matters that were within the definition of "cyber stalking". In any event if the matter were to be reviewed the final hearing on the FVRO would need to be vacated and the matter would be more quickly dealt with by way of final hearing.

[Summary prepared by Lily Philp for Western Australian Magistrates Court]

Howell v Davies [2019] WASC 220 (27 June 2019) – Western Australia Supreme Court

‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Court safety’ – ‘Family violence’ – ‘Intimidation’ – ‘Repeated breaches’

Charges: 1 x breach of restraining order

Case type: Application for leave to appeal out of time and leave to appeal against sentence

Facts: The appellant man pleaded guilty to a charge of breaching a family violence restraining order. He breached the order by approaching his female former partner outside court immediately following the restraining order final hearing for which he had failed to appear and asking "when am I going to see my kids?" He was sentenced to 7 months' imprisonment. He sought leave to appeal against that sentence. The application for leave to appeal was lodged 12 days after the last date for filing an appeal. An application for expedited hearing had already been granted.

Ground: The learned magistrate erred in finding that it would be necessary to find 'unjust circumstances' in order to suspend the term of imprisonment ([24]).

Held: The breach in question did not involve any actual or expressly threatened violence, however Hall J noted that ‘protected persons can feel intimidated or threatened by being contacted or approached by the person they fear’. The orders intended to provide protection from such fear, as well as the risk of physical harm ([31]).

In assessing the gravity of the offence, Hall J listed relevant factors:

•

The breach occurred in the surroundings of a court, where the protected person was entitled to feel secure;

•

The appellant attended court for a hearing in relation to the order, so its requirements must have been known to him;

•

The approach was physical, and it is more likely that fear would be caused to a protected person in such a case;

•

This was the third breach of the same order within a 4-month period, demonstrating a persistent disregard for court orders and the appellant’s failure to be deterred by previous prison sentences;

•

The breach occurred just over 10 days after the appellant was released after serving, concurrently, 2 months for previous breaches (aggravating feature);

•

This was the eleventh offence of this nature over a 5-year period. The appellant had clearly shown contempt for authority on previous occasions, which thereby increased the need for specific deterrence.

These factors, as well as the appellant’s explanation for and nature of the breach, his early guilty plea and the risk of institutionalisation, led his Honour to find that it would have been inappropriate to suspend the term of imprisonment. Accordingly, there was no substantial miscarriage of justice and the appeal was dismissed ([39]).

Goodacre v Lumbers [2019] WASC 184 (27 May 2019) – Western Australia Supreme Court

‘Appeal against conviction - guilty plea’ – ‘Breach of fvro’ – ‘Meaning of fvro term’

Charge/s: 1 x breach of FVRO

Case Type: Application for extension of time to appeal, appeal against conviction following plea of guilty

Facts: On 29 December 2018 the appellant was convicted in the Magistrates Court on his plea of guilty to one offence of breaching a FVRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA). The appellant applied for an extension of time to appeal and for leave to appeal against conviction. The appellant appeals the conviction on the ground that he could not in law, on the basis of the admitted facts, have been guilty of the offence. The appellant was said to have breached the FVRO by ‘harass[ing] the Person Protected by any electronic means, including by using the internet and any social network application (such as ‘Facebook’) to depict or refer in any manner to the person protected’, and appeals on the basis that he was dealt with in the Magistrates Court on the basis that he referred to the person protected and not on the basis he harassed her.

Issue: Is a reference to a protected person in a SMS message not sent to the protected person a breach of the FVRO? Is it a mere reference via electronic means that constitutes a breach, or is it actual harassment?

Held: Application allowed and leave granted. A breach occurs if the person subject to the order ‘harasses’ the person protected. The reference to ‘including by using the internet and any social network application (such as ‘Facebook’) to depict or refer in any manner to the person protected’ serves only as an example of what could constitute harassment, and was not intended by parliament to mean that any electronic reference to the person protected constitutes a breach.

[Summary prepared by Lily Philp for Western Australian Magistrates Court]

Masoud v Dhaliwal [2019] WASC 56 (1 March 2019) – Western Australia Supreme Court

‘Fines’ – ‘Physical violence and harm’ – ‘Security officer’ – ‘Sentencing’ – ‘Strangulation’

Charges: Assault in circumstances of aggravation x 1.

Case type: Appeal against sentence.

Facts: The appellant was convicted on his plea of one offence of assault in circumstances of aggravation. The relevant circumstance of aggravation was that the appellant and the victim, the appellant's wife, were in a family relationship. The assault comprised of the appellant hitting the victim, grabbing her by the throat, and holding her around five seconds until other family members intervened ([6]). At the time of the offence, the appellant held a security officer’s licence and worked as a security officer. The licence was suspended and he resigned from his job before the sentencing hearing ([7]). Having regard to the seriousness of the offence and mitigating factors, the magistrate imposed a fine of $1200 and made a spent conviction order ([1]).

Issues: The appellant appealed the sentence. Submissions included that:

•

The appellant's counsel did not make submissions about the amount of the fine or the possible impact of a fine on the appellant's ability to continue to hold a security licence, and therefore the magistrate did not consider such implications.

•

The sentence would lead to a loss of employment, hardship and a loss of financial security.

•

The imposition of a fine under $500 would be within the range of an appropriate exercise of the sentencing discretion given the circumstances of the offence and relevant mitigating factors (appellant's age and evident remorse, absence of any prior offending, the fact that the appellant is the main financial provider for his family).

Decision and reasoning: The Court was not satisfied that there was any substantial miscarriage of justice and dismissed the appeal. At [29]-[32], Tottle J noted numerous issues with the appellant’s case. First, as the respondent submitted, reducing the fine imposed on the appellant under $500 would undermine the operation of the Security and Related Activities (Control) Act 1996 (WA). His Honour accepted that this was a case involving a nexus between the offending and the appellant's occupation as a security officer. Security officers must often exhibit self-restraint in the performance of their duties. The offending was contrary to this. Second, there was force to the respondent's submission that the appellant's argument does not rest on the proposition that the fine should be reduced because of the extra-curial punishment constituted by the financial hardship resulting from the loss of the appellant's security officer's licence, but that the fine should be reduced to avoid that extra-curial punishment with the result that the appellant is doubly advantaged in relation to mitigation. Third, the maximum penalty for the offence of common assault in circumstances of aggravation is a $36,000 fine or 3 years’ imprisonment, or both. A fine of less than $500 would not constitute an appropriate sentence. Although the offence was considered to be 'towards the lower end of the scale’, there is no single correct sentence for any offence, and his Honour held that a fine of less than $500 would not be adequate given the seriousness of the offending.

Smartt v Sloane [2019] WASC 35 (5 February 2019) – Western Australia Supreme Court

‘Coercive and controlling’ – ‘Cumulation’ – ‘Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Protection orders’ – ‘Sentencing’

Charges: Breaches of a restraining order and a protective bail condition, stalking.

Appeal type: Appeal against sentence.

Facts: The appellant breached a Family Violence Restraining Order (FVRO) which restrained him from communicating or attempting to communicate with the victim (his former partner) by any electronic means. He was also charged with an offence of stalking, based on repeated calls he made to the victim which had the effect of intimidating her. He also failed to comply with a protective bail condition ([3])-[12]). He pleaded guilty to all the offences and was sentenced to 12 months’ imprisonment. The Magistrate noted that the appellant’s conduct was coercive and controlling, causing fear to his former partner. His behaviour was ‘persistent and intimidatory’, and the breaches showed a repeated disregard of the court orders ([16]).

Issues: The appellant sought to appeal his sentence on the ground that the Magistrate’s sentencing discretion miscarried, and that the sentence was manifestly excessive and contrary to the weight of the evidence.

Decision and reasoning: The Court found that the appellant’s breaches of the restraining order could not be described as ‘minor or technical’ ([33]). Although the breaches did not involve actual or threatened violence, his repeated acts showed a refusal to accept the authority of the order imposed for the protection of the victim. The Court was satisfied that the term imposed for the offences was manifestly long so as to show an error in principle ([35]). The Court considered the personal circumstances of the appellant – he was 36 years old, a self-employed businessman, and had previous convictions for serious breaches of a VRO against the same victim for which he was sentenced to imprisonment ([37]). Consequently, the Court allowed the appeal and resentenced the appellant. A cumulative sentence was found to be appropriate to reflect the additional element of intimidation. The head sentence was reduced to 8 months, and the appellant was eligible for parole ([40]-[41]).

Bryant v Witts [2018] WASC 194 (27 June 2018) – Western Australia Supreme Court

‘Animal abuse’ – ‘Disclosure’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality’

Charges: Aggravated unlawful assault x 2; Aggravated unlawful assault causing bodily harm x 4; Cruelty to an animal causing it unnecessary harm x 1.

Appeal type: Appeal against sentence.

Facts: The appellant and complainant were in a de facto relationship. On multiple occasions over 2 years, the appellant punched or struck the complainant, causing a broken arm ([25]) and a split lip ([26]). On the occasions where he struck her with a hairbrush and mobile phone, her head split open and she required stitches ([18]-[21], [24]). The appellant also kicked her small dog, causing it to become paralysed and die ([29]). Her children were present on most of the occasions. The assaults were unprovoked. While the police were sometimes called by witnesses, the complainant did not feel safe enough to tell the police about all the assaults until she had left the relationship ([31]).

The appellant pleaded guilty and was sentenced to 22 months’ imprisonment ([48]).

Issues: Whether the sentence was manifestly excessive; whether the sentence infringed the first limb of the totality principle; whether a suspended sentence should have been imposed.

Decision and reasoning: The appeal was dismissed.

Derrick J found that the sentence was not manifestly excessive. His Honour stated that “over an extended period of time the appellant engaged in a serious course of criminal conduct comprised of subjecting the vulnerable complainant to a number of significant acts of domestic violence. The fact that the offences were committed in a domestic setting increases the seriousness of what the appellant did” ([73]). Factors such as the appellant’s relative youth and relatively limited prior record provided some mitigatory value.

For largely the same reasons, Derrick J considered that imposing an immediate term of imprisonment, compared to a suspended sentence, was not outside the range of the magistrate’s sentencing discretion ([94]).

Re Magistrate G Mignacca-Randazzo; Ex parte Chown [2018] WASC 157 (11 May 2018) – Western Australia Supreme Court

‘Adjournments and timely decision making’ – ‘Fair hearing and safety’ – ‘Family violence restraining order’ – ‘Judicial review’ – ‘Victim experience of court processes’

Case type: Application for review of Magistrate’s decision not to make a final family violence restraining order and application for stay of proceedings.

Facts: The applicant made an application for a family violence restraining order pursuant to s 24A of the Restraining Orders Act 1997 (WA) (‘Restraining Orders Act’) against her former partner ([9]). The Court made an interim family violence restraining order ([10]). The respondent objected to the interim order ([11]). The next hearing was listed as a 'Restraining Order Final Order Directions Hearing'. The respondent did not attend at that hearing. The Magistrate did not make a final order, and adjourned the hearing ([14]-[17]).

The applicant applied for a review order under s 36 of the Magistrates Court Act 2004 (WA) ([2]), to review the Magistrate’s decision not to make a final restraining order. The applicant also applied for a stay of the substantive hearing.

Issues: Whether the applications should be granted.

Decision and Reasoning: Tottle J granted the review order and the stay of proceedings.

Tottle J set out the principles governing judicial review under s 36of the Magistrates Court Act 2004 (WA) at [4]-[8]. His Honour set out the principles governing when a final order must be made under s 42 of the Restraining Orders Act at [20]-[24]. Tottle J held that it was irrelevant that the hearing was described as a 'Restraining Order Final Order Directions Hearing' even though no hearing of that nature is contemplated or provided for by the Restraining Orders Act (discussing Kickett v Starr [2013] WADC 52) ([27]-[32]). Tottle J was satisfied that the Magistrate made a jurisdictional error by not exercising the jurisdiction conferred on him by the Restraining Orders Act ([33]).

Tottle J set out the principles governing when a stay ought to be granted at [40]. Tottle J granted a stay of the proceedings on the grounds that the applicant’s medical conditions and stress would be exacerbated by having to face the respondent in a contested hearing ([41]-[42]). Tottle J noted that s 10B of the Restraining Orders Act requires courts to have regard to the possibility of re-traumatisation during the proceedings ([43]).

Labriola v Morgan [2017] WASC 256 (30 August 2017) – Western Australia Supreme Court

‘Animal abuse’ – ‘Breach of restraining order’ – ‘Control’ – ‘Domestic violence incident report’ – ‘Factors affecting risk’ – ‘Financial abuse’ – ‘Frequency of abuse’ – ‘Jealousy’ – ‘Risk assessment’ – ‘Stalking’ – ‘Strangulation’ – ‘Threats to kill’

Charges: Obstructing a police officer x 1.

Appeal type: Appeal against conviction.

Facts: The appellant was convicted of obstructing two police officers by resisting arrest ([2]). The appellant was arrested on suspicion of committing an offence by breaching a violence restraining order ([2]). The breach occurred when the appellant attended a dog training class when he allegedly knew the victim would be there ([56]). The victim later reported the incident and the incident was recorded with a Domestic Violence Incident Report (‘DVIR’):

•

‘Prior family domestic violence incidents between the involved parties? Yes

•

Is the victim frightened? Yes

•

Is the abuse happening more often? Yes

•

Is the abuse getting worse? Yes

•

Financial issues? Yes (Issues surrounding the ownership of the two dogs)

•

Does the perpetrator try to control everything the victim does? Yes

•

Is the perpetrator excessively jealous? Yes

•

Does the perpetrator constantly text, call contact, follow, stalk or harass the victim? Yes

•

Has the perpetrator ever threatened to hurt or kill the victim? Yes

•

Has the perpetrator eve attempted to strangle/choke/suffocate/drown the victim? Yes

•

Other information: [the appellant] has grabbed [the complainant] by the throat in Dec 2014 and has tried to strangle one of the two dogs in the past’ ([57]).

Issues: One issue was whether the police could form a reasonable suspicion that the appellant had breached a violence restraining order by relying on a DVIR ([61](iv))

Decision and Reasoning: Justice Tottle concluded that the officer’s ‘suspicion of a breach of the order by the appellant was reasonable. The narrative section of the incident report read in the context of the DVIR section of the report (that is the allegation of breach assessed against what had allegedly taken place in the past) provide a basis for a suspicion that the appellant had breached the order’ ([70]).

Dennis v Lanternier (No 2) [2017] WASC 5 (12 January 2017) – Western Australia Supreme Court

‘Breach of restraining order’ – ‘Following, harassing and monitoring’ – ‘Sentencing-protection of victims’ – ‘Threats’

Charges: Breach of violence restraining order (VRO) x 20.

Appeal type: Appeal against sentence.

Facts: The appellant and the victim were married for 14 years but were separated at the time of the offences ([13]). A VRO was granted with the victim as the protected person ([13]). The appellant was prohibited from contacting the respondent except to arrange for contact with his son ([15]). The appellant breached the VRO over a period of 7 months by making a significant number of phone calls to the victim and sending text messages and letters beyond the bounds of the VRO ([18]-[53]). In some instances, the messages included threats to kill the victim and himself. The Magistrate imposed an aggregate sentence of 18 months’ imprisonment.

Issues: There were 6 grounds of appeal:

the total sentence was manifestly excessive;

the Magistrate did not properly take into account the appellant's pleas of guilty which were entered at an early opportunity;

the Magistrate failed to consider totality when determining the aggregate sentence;

the Magistrate overlooked the appellant's personal circumstances including his wife's breaches of the Family Court consent orders and the appellant's mental state at the time of the offences;

the Magistrate made an error of fact by taking into account an untrue submission made by the prosecutor that the appellant had threatened his child; and

there was an error in recording the appellant's aggregate sentence as 18 months' imprisonment rather than 15 months' imprisonment ([3]).

Decision and Reasoning: Jenkins J dealt with the grounds of appeal in the following manner:

Dismissed ([142]-[175]).

Error made out. Jenkins J held that the Magistrate failed to correctly apply s 9AA(5) of the Sentencing Act 1995 (WA) by failing to state the extent of reduction given to the pleas of guilty for each head sentence ([122]-[124]).

Dismissed ([125]-[127]).

Dismissed ([128]-[137]).

Not possible to decide because part of the proceedings in the Magistrates Court had not been recorded. Jenkins J did not take this fact into account in deciding the appeal ([138]-[141]).

Dismissed. It was clear that the Magistrate meant to impose an aggregate sentence of 18 months’ imprisonment ([109]-[110]).

While Jenkins J accepted that ground 2 was made out, the appeal was dismissed because the error did not result in a substantial miscarriage of justice ([184]).

Jenkins J referred to the role of the Restraining Orders Act in deterring domestic violence at [152]:

The long title of the Restraining Orders Act reflects Parliament's intention for the Act to provide for orders to 'restrain people from committing acts of family or domestic or personal violence by imposing restraints on their behaviour and activity'. In order for the Act to be effective, offenders must appreciate that if they breach a VRO they will receive a significant penalty. The community and the courts have [an] intolerance and abhorrence of violence and threatened violence in domestic and former domestic relationships. The penalties imposed for breaches of VROs must reflect that intolerance and abhorrence, in the hope that the penalties deter offenders and protect victims.

Bindai v Armstrong [2016] WASC 341 (20 October 2016) – Western Australia Supreme Court

‘Miscarriage of justice’ – ‘Notice of application’ – ‘Violence restraining order’

Charges: Breach of violence restraining order (‘VRO’) x 1.

Appeal type: Appeal against conviction.

Facts: There was a final VRO in place protecting the applicant’s partner. The applicant’s partner applied for a variation of that order. The applicant was not served with notice of the application to vary the VRO ([10]). The Magistrate granted the application to vary the VRO even though the appellant was not present ([11]). The appellant pleaded guilty to breaching the VRO ([1]).

Issues: Whether the appellant’s conviction upon his own plea was a miscarriage of justice.

Decision and Reasoning: The appeal was allowed ([30]). The variation to the restraining order was a nullity ([16], [22]). It was an essential condition of the jurisdiction to hear the application to vary the VRO under s 48(2) of the Restraining Orders Act 1997 (WA) that the Court be satisfied that the appellant was served with the summons ([23]). Since the Court was not so satisfied, the VRO had no legal force. It was a miscarriage of justice for the appellant to be convicted of breaching the order ([24]).

BV (on behalf of M, N and O) v TP [2016] WASC 228 (28 July 2016) – Western Australia Supreme Court

‘Evidence issues’ – ‘Exposing children to domestic and family violence’ – ‘Victim experience of court processes’ – ‘Violence restraining order’

Case type: Application for leave to appeal against Magistrate’s decision not to grant final violence restraining order (FVO).

Facts: The appellant, BV, and the respondent, TP, were married but separated. BV obtained an interim FVO against TP in the Children’s Court. The FVO was to protect BV and TP’s three daughters, M, N and O ([1]-[2]). At the final order hearing, after BV had given her evidence in chief, the Magistrate interrogated TP’s counsel about the likely content of further evidence proposed to be given by the children. The Magistrate expressed a strong disinclination against exposing the children to cross-examination by the respondent’s counsel. The Magistrate summarily dismissed BV’s application for a final order VRO on the basis that even if their evidence was accepted, it would not be enough to justify an FVO being granted ([7]-[8], [45]).

Issues: Whether the Magistrate erred in law by summarily dismissing the proceedings.

Decision and Reasoning: The appeal was dismissed. Kenneth Martin J held that the Magistrate was correct in expressing concern for the children’s welfare if they were cross-examined ([118]). His Honour held that the Magistrate had the power to summarily dismiss the final order VRO application ([133]-[143]) and that the Magistrate’s discretionary exercise of power to dismiss the proceedings was justifiable ([144]-[147]).

His Honour discussed the Supreme Court’s appellate jurisdiction in the circumstances that the interim order was made in the Children’s Court at [21], [46]-[90] and [149]-[161]. His Honour discussed the principles applicable to children giving evidence in VRO proceedings at [99]-[119].

Bacchelli v Merchant [2015] WASC 205 (9 June 2015) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Insanity’ – ‘Miscarriage of justice’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Plea of guilty’

Charge/s: Breach of violence restraining order.

Appeal Type: Appeal against conviction.

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

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

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

Bernard v Williams [2015] WASC 182 (30 April 2015) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Consent’ – ‘Immediate imprisonment’ – ‘Repeated breaches of a restraining order’ – ‘Temporary protection order’

Charge/s: Breach of violence restraining order.

Appeal type: Appeal against sentence.

Facts: The appellant pleaded guilty to two breaches of a violence restraining order. He breached the order by living with the protected person and by being within a hundred metres of the protected person (in the same house as her). At the same time, the appellant was also dealt with for an earlier breach alleging that he was within a hundred metres of the protected person (attending and remaining at the protected person’s address). This was a ‘third strike’ case in which the magistrate was required to impose a penalty that is or includes imprisonment. The magistrate imposed a term of imprisonment for six months for each offence. A sentence of six months or less may not be imposed (Sentencing Act 1995 (WA) s86). The day before the hearing of this appeal, the Magistrates Court recalled the sentence and imposed a sentence of 6 months and 1 day.

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

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

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

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

Wallam v Grosveld [2015] WASC 145 (24 April 2015) – Western Australia Supreme Court

‘Breach of restraining order’ – ‘Imprisonment’ – ‘People affected by substance abuse’ – ‘Sentencing’

Charge/s: Breach of restraining order.

Appeal Type: Application for leave to appeal against sentence.

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

Issue/s: Some of the issues concerned –

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

Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. It seemed that the protected person invited the applicant back to her premises to collect his clothes. Notwithstanding, any breach of a VRO is serious. Justice Kenneth Martin commented on the penalties for the offence and then noted at [78]:

‘Those significant statutory penalties speak loudly as to the seriousness of a breach of a restraining order and dictate how closely and carefully the underlying circumstances of such an offence must be assessed in every case. In the past there have, of course, been well referenced instances where terrible crimes of violence have been committed in the community against protected persons by individuals otherwise bound by a restraining order, but who chose to ignore it. Plainly, the statutory right to apply for a VRO is meant to assist the more vulnerable to protect themselves from violence, especially (but not solely) women who are the victims of domestic violence. Thus, issues of general and specific deterrence concerning offenders are more than usually important in this arena.’

In this case, there had been no threatening or intimidatory behaviour. While an adverse inference could be drawn from the apparent fact that the applicant was hiding when police arrived, the applicant’s actions cannot be seen as a ‘calculated and flagrant’ contempt of the VRO – ‘Ignorance about the strict workings of a VRO, in the face of periods of separation and reconciliation and then heavy alcohol consumption at the end of a long-term relationship, are a more viable explanation for his misconduct, in my view’ (see at [80]).

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

2. This argument was also upheld.

Rogers v Hitchcock [2015] WASC 120 (7 April 2015) – Western Australia Supreme Court

‘Breach of police order’ – ‘Criminal history’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Programs for perpetrators’ – ‘Sentencing’

Charge/s: Breach of police order.

Appeal Type: Appeal against sentence.

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

Issue/s: Some of the issues concerned –

Whether the Magistrate erred in sentencing the appellant to a term of imprisonment.

Whether the Magistrate erred in failing to suspend the term.

Whether the Magistrate erred in failing to backdate the sentence of imprisonment.

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

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

The Court held that it was within the Magistrate’s discretion to refuse to suspend the sentence.

Given error was demonstrated by the failure to backdate the sentence, it was appropriate to resentence the appellant. In that regard, Justice Hall took into account some further steps that the appellant had taken towards rehabilitation, including drug and alcohol programs. Given these circumstances and the time already spent in custody, the prison sentence was set aside and the appellant was fined $1500.

Weston v Cartmell [2015] WASC 87 (16 March 2015) – Western Australia Supreme Court

‘Bail’ – ‘Breach of bail’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Totality’ – ‘Trespass’

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

Appeal Type: Appeal against sentence.

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

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

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

Hall J noted that while the large number of breaches of bail made this offending serious, the personal circumstances of the appellant were exceptional. Given that many of the communications related to business issues, it is difficult to conclude that the communications were intimidatory. As his Honour noted at [39] – ‘The number of the communications could not be viewed in isolation from their purpose and subject matter. There was no evidence that any of the communications were harassing or threatening in tone, content or nature. There was no information regarding communications being at inconvenient times or being deliberately repetitive.’

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

Bropho v Hall [2015] WASC 50 (9 February 2015) – Western Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravated common assault’ – ‘Breach of protective bail condition’ – ‘Coercive control’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Women’

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

Appeal type: Appeal against sentence.

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

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

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

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

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

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

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

The State of Western Australia v Carlino [No 2] [2014] WASC 404 (31 October 2014) – Western Australia Supreme Court

‘Battered woman syndrome’ – ‘Economic abuse’ – ‘Emotional abuse’ – ‘Evidence’ – ‘Expert testimony’ – ‘Following, harassing, monitoring’ – ‘Murder’ – ‘Opinion evidence’ – ‘Physical violence and harm’ – ‘Self-defence’

Charge/s: Murder.

Proceeding: Application to adduce certain expert evidence.

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

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

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

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

Taylor v The State of Western Australia [2014] WASC 292 (19 August 2014) – Western Australia Supreme Court

‘Assault causing bodily harm’ – ‘Bail’ – ‘Physical violence and harm’

Appeal type: Bail application.

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

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

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

Sturt v Ball [2013] WASC 343 (9 September 2013) – Western Australia Supreme Court

‘Breach of protection order’ – ‘Definition of 'approach'’ – ‘Protection order’

Charges: Breach of violence restraining order x 1.

Appeal type: Appeal against conviction.

Facts: The appellant was subject to a violence restraining order which provided that the appellant must not approach within 20 metres of the protected person ([4]). The evidence was that the protected person walked up to the appellant ([6]-[8]).

The magistrate convicted the appellant on the basis that even though the appellant did not ‘approach’ the protected person, it was incumbent upon the appellant to immediately walk away ([12]).

Issues: Whether the verdict was unreasonable and could not be supported.

Decision and Reasoning: The appeal was upheld, and the conviction quashed. Beech J held that the charge should have been dismissed once the Magistrate was satisfied that the appellant did not approach the protected person ([16]). The word “approach” should be construed in its ordinary meaning: “to come nearer or near to (someone or something) in distance or time” ([14]). An obligation to walk away from a protected person cannot be implied into a violence restraining order ([17]).

Mills v Hawley [2013] WASC 261 (3 July 2013) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Following, harassing, monitoring’ – ‘Sentencing’

Charge/s: Breach of violence restraining order.

Appeal Type: Appeal against sentence.

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

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

Decision and Reasoning: The appeal was upheld.

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

Brown v Bluett [2013] WASC 189 (14 May 2013) – Western Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Breach of restraining order’ – ‘Physical violence and harm’ – ‘Repeated breaches of a restraining order’ – ‘Temporary protection order’

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

Appeal type: Appeal against sentence.

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

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

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

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

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

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

Hamlett v Whitney [2013] WASC 100 (22 March 2013) – Western Australia Supreme Court

‘Aggravated assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Temporary protection order’ – ‘Totality’

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

Appeal type: Appeal against sentence.

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

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

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

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

Rowe v Gaunt [2013] WASC 90 (20 March 2013) – Western Australia Supreme Court

‘Breach of restraining order’ – ‘Expiration of restraining order’ – ‘Miscarriage of justice’

Charge/s: Breach of restraining order.

Appeal Type: Appeal against conviction.

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

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

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

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

Cramphorn v Bailey [2012] WASC 462 (30 November 2012) – Western Australia Supreme Court

‘Breach of protection order’ – ‘Protection orders’ – ‘Self-represented litigant’ – ‘Whether police restraining order must be served on the protected person’

Charges: Aggravated assault x 1; Breaching a police order x 1.

Appeal type: Appeal against convictions.

Facts: The appellant was in a relationship with a Mr Michalaros. While driving her car, the appellant punched Mr Michalaros in the face. There was evidence that Mr Michalaros was the subject of a restraining order in favour of the appellant.

The police attended and issued the appellant with a police order, with one of the conditions to not contact Mr Michalaros for a 24-hour period. Mr Michalaros alleged that she sent him threatening text messages in breach of the order.

The appellant was convicted following a trial and was fined a total of $1,300 and granted a spent conviction order.

Issues: Multiple grounds, including that the restraining order was invalid because the police did not serve Mr Michalaros with a copy.

Decision and reasoning: The appellant was a self-represented litigant. The judge rejected all grounds of appeal. In relation to the argument that the police order was invalid the judge stated:

It would be contrary to the purposes of the ROA (Restraining Orders Act 1997 (WA)) if the validity of an order depended upon service on the protected person. There could be circumstances where the police have grounds to issue a police order but where the protected person cannot be located or it is impractical to serve a copy upon him or her. Given the shortness of time for which such orders remain current and the urgent circumstances in which they must often be made, it would produce consequences that are contrary to the purposes of the ROA if an order only became effective when a copy was served on the protected person. This is a procedural requirement only and not one upon which the validity of an order depends.

Harrison v Hunter [2012] WASC 166 (30 April 2012) – Western Australia Supreme Court

‘Aggravated assault’ – ‘Interests of child’ – ‘Perpetrator intervention program’ – ‘Sentencing’ – ‘Subsequent engagement in family violence programme’

Charge/s: Aggravated assault

Appeal Type: Appeal against sentence.

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

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

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

Kjellgren v Cameron [2012] WASC 80 (1 March 2012) – Western Australia Supreme Court

‘Aggravated assault occasioning bodily harm’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’

Charge/s: Aggravated assault occasioning bodily harm.

Appeal Type: Appeal against sentence.

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

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld.

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

Messiha v Plaucs [2012] WASC 63 (24 February 2012) – Western Australia Supreme Court

‘Aggravated assault’ – ‘Aggravated assault occasioning bodily harm’ – ‘Character’ – ‘Criminal history’ – ‘Exposing a child’ – ‘People affected by substance abuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Threat to injure’ – ‘Totality’ – ‘Victim’

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

Appeal Type: Appeal against sentence.

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

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

Decision and Reasoning: The appeal was upheld.

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

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

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

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

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

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

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

Musgrove v Millard [2012] WASC 60 (22 February 2012) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Double jeopardy in sentencing’ – ‘Double punishment’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Unlawful installation of a tracking device’

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

Appeal Type: Application for leave to appeal against sentence.

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

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

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

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

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

Stokes v Auckland [2012] WASC 2 (10 January 2012) – Western Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘substance abuse’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against conviction and sentence.

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

Issue/s: Some of the issues concerned –

Whether the plea of guilty was made under duress and did not reflect his acceptance of the facts alleged by the prosecution.

Whether the sentence of 16 months for the latest assault was manifestly excessive and whether the total effective sentence was disproportionate to the overall criminality of the offending.

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

This argument was dismissed – see at [23]-[32].

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

As such, the Court held that while the one-month sentence was at the higher end of the range for offences of this kind, it was within the Magistrate’s discretion, having regard to the seriousness of the offence and the need for personal and general deterrence. In relation to totality, the Court held that the earlier offences were separate and unrelated to the latest assault. It was appropriate to activate these suspended sentences and orders of cumulation did not make the total effective sentence disproportionate to the overall criminality of the offending.

Corrigan v Kirkman [2011] WASC 254 (11 July 2011) – Western Australia Supreme Court

‘Aggravated common assault’ – ‘Breach of protective bail conditions’ – ‘Breach of violence restraining order’ – ‘Physical violence and harm’ – ‘Temporary protection order’ – ‘Totality’

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

Appeal type: Appeal against sentence.

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

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

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

Isenhood v Green [2011] WASC 70 (10 February 2011) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Deterrence’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Hearsay’ – ‘People affected by substance abuse’ – ‘Prejudicial material in victim impact statement’ – ‘Programs for perpetrators’ – ‘Sentencing’ – ‘Threats to injure’ – ‘Victim impact statement’

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

Appeal Type: Appeal against sentence.

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

Issue/s:

Whether the sentence was manifestly excessive.

Whether the Magistrate erred by taking into account hearsay and irrelevant material in the victim impact statement.

Whether the Magistrate erred by taking into account prior property damage offences in concluding that the appellant has the potential to act violently in the future.

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

Firstly, Jenkins J noted that the breach offence was not at the upper range because it did not involve any physical contact or actual violence. However, it was not trivial and included a threat of actual violence. Furthermore, there were no significant mitigating factors – the appellant had six prior convictions for breaching a VRO, was not remorseful and the previous penalties imposed had clearly not been effective as a personal deterrent. Notwithstanding, there were no attempts to carry through with the threats and no indication that the appellant intended to do so. Also, the appellant was no longer in a relationship with his partner and had ceased contact with the complainant’s daughter.

The victim impact statement detailed the history of the dispute between the appellant and complainant from the complainant’s point of view. The appellant described it as ‘inflammatory’ and Jenkins J agreed with that description. The appellant was not given an opportunity to respond to the matters in the statement. The respondent conceded that the Magistrate should not have taken these matters into account. The Magistrate needed to make clear that these matters were not taken into account.

Jenkins J held that it was ‘drawing too long a bow’ to suggest that the appellant’s violent attack on an ATM machine was reason to believe that he may attack people in the future. However, this of itself was not cause to allow the appeal as no substantial miscarriage of justice occurred.

The appellant was re-sentenced to a 12-month intensive supervision order which included programs to address anger management and alcohol abuse.

Morgan v Kazandzis [2010] WASC 377 (10 December 2010) – Western Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault causing bodily harm’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Pregnancy’ – ‘Sentencing’ – ‘Suspended sentence’ – ‘Vulnerable groups’ – ‘Women’

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

Appeal type: Appeals against conviction and sentence.

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

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

The learned magistrate erred by failing to suspend the terms of imprisonment imposed, when:

the learned magistrate failed to give consideration to whether the terms ought to be suspended; and

a suspension of the sentence was open in all of the circumstances.

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

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

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

Baudoeuf v Venning [2010] WASC 322 (17 November 2010) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Extenuating circumstances’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Suspended sentence’

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

Appeal Type: Appeal against sentence.

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

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

Decision and Reasoning: The appeal was upheld.

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

Lutey v Jacques [2010] WASC 78 (28 April 2010) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Following, harassing, monitoring’ – ‘People living in regional, rural and remote communities’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Threat of self-harm’

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

Appeal Type: Appeal against sentence.

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

Issue/s:

Whether the Magistrate erred by failing to adequately consider sentences other than imprisonment.

Whether the sentence was manifestly excessive.

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

The Court held that the Magistrate did sufficiently have regard to the possibility of other sentencing options, such as an intensive supervision order or a fine.

Simmonds J firstly noted that the maximum penalty for breaching a restraining order had been increased which indicates Parliament’s intention is that the courts regard these offences more seriously. At [53]-[61], his Honour provided a summary of relevant authorities. He stated at [61] that these authorities (decided before the increase in penalty) take the following approach in sentencing breaches of VROs –

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

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

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

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

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

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

Sakkers v Thornton [2009] WASC 175 (22 June 2009) – Western Australia Supreme Court

‘Aggravated stalking’ – ‘Breach of restraining order’ – ‘Concurrency’ – ‘Deterrence’ – ‘Double jeopardy and other charges’ – ‘Double punishment’ – ‘Following, harassing, monitoring’ – ‘Possession of firearm’ – ‘Suspended sentence’ – ‘Totality’

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

Appeal Type: Appeal against sentence.

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

Issue/s: Some of the issues concerned -

Concurrency: Whether the sentence imposed for the breach offences should have been made concurrent with the sentence for the stalking offence because both offences involved the same acts.

Totality: Whether the Magistrate failed to have proper regard to the totality principle.

Whether the sentences were manifestly excessive.

Whether the sentence should have been suspended.

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

The prosecution conceded that the appeal on the issue of concurrency must succeed. Section 11(1) of the Sentencing Act 1995 provides that a person is not to be sentenced twice on the same evidence. Simmonds J stated at [22] – ‘Here the offence of aggravated stalking was constituted by the course of conduct whose constituents were the 12 breaches of the violence restraining order. The sentences for the 12 breaches of violence restraining order, globally, are the same as the sentence for the aggravated stalking.’ As such, the global sentence for the breach offences was set aside.

The appellant submitted that a total effective sentence (without the sentence for the breach offences) of 19 months and 2 weeks was a crushing sentence and was not a just measure of the criminality involved. Simmonds J acknowledged that the Magistrate failed to recognise an overlap in the criminality between the stalking and breach offences, in that he did not have regard to the issue of double punishment, as noted above. However, this did not result in the sentence infringing the totality principle.

An argument that the sentences for the aggravated stalking and firearms offences were manifestly excessive was dismissed. The appellant had some modest criminal history which did not involve violence. While he pleaded guilty, he showed minimal insight into his actions or empathy towards the victim. Simmonds J also noted the seriousness of the offending. In comparing analogous cases (see [70]-[72] for summaries) his Honour concluded that the sentence was within range.

The Magistrate did not suspend the sentence because he was concerned that a suspended sentence would act as a sufficient deterrent to the appellant and would not provide adequate protection for the victim, as well as other matters. This approach was appropriate and this ground was dismissed.

Paskov v Hull [2008] WASC 163 (28 July 2008) – Western Australia Supreme Court

‘Aggravated assault occasioning bodily harm’ – ‘Deterrence’ – ‘Double jeopardy in sentencing’ – ‘People affected by substance abuse’ – ‘Physical violence and harm’ – ‘Proximity of offences’ – ‘Sentencing’ – ‘Totality’

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

Appeal Type: Application for leave to appeal against sentence.

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

Issue/s:

Whether the sentence was manifestly excessive.

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

Decision and Reasoning: Leave to appeal was refused.

Hasluck J noted that the offences were particularly serious. The Magistrate gave appropriate consideration to this as well as to personal and general deterrence. This was, ‘apt in respect of a severe attack on a defenceless woman who was in a relationship with the applicant, especially when the attacks were sustained and persistent’ (see at [52]). As such, the sentences could not be described as manifestly excessive.

The Court held that there was a separation in time between the offences and they were of a different kind. Hasluck J referred to the ‘common elements principle’ and acknowledged that it would be wrong two punish an offender twice where ‘there is essentially one transaction or commonality is evident’ but that this did not arise on the facts (see at [51]).

Elliot v Blanchard [2007] WASC 289 (14 November 2007) – Western Australia Supreme Court

‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’

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

Appeal Type: Appeal against sentence.

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

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

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

Gilmour v State of Western Australia [2005] WASC 243 (8 November 2005) – Western Australia Supreme Court

‘Aggravated stalking’ – ‘Attempt to pervert the course of justice’ – ‘Bail’ – ‘Breach of violence restraining order’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Systems abuse’ – ‘Temporary protection order’

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

Appeal type: Appeal against refusal of bail.

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

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

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

Last updated: July 2024

Western Australia

Supreme Court

Read v DPP (WA) [2024] WASC 10 (19 January 2024) – Western Australia Supreme Court

Charges: Aggravated assault causing bodily harm x 1; aggravated criminal damage x 1; aggravated strangulation x 1.

Proceedings: Appeal against sentence.

Grounds of Appeal: The appellant appealed the sentence, raising the following grounds of appeal:

The Magistrate erred in failing to properly regard the principles to suspend a term of imprisonment;

The total effective sentence was manifestly excessive.

The Magistrate erred in failing to give adequate weigh to the appellant’s personal circumstances (e.g., PTSD-diagnosis and persistent depressive and attachment disorder)

Decision and Reasoning: Leave to appeal refused. Appeal dismissed.

Accordingly, it was reasonably open to the Magistrate to be positively satisfied that a suspended imprisonment sentence was not appropriate. [47]

Having regard to the totality principle, Whitby J upheld the total effective sentence of 15 months’ imprisonment was not manifestly excessive:

Supljeglav v DPP (WA) [2023] WASC 453 (29 November 2023) – Western Australia Supreme Court

‘ Appeal against sentence’ – ‘ Strangulation/choking’ – ‘ Physical violence and harm’ – ‘ Exposing children to domestic and family violence’ – ‘ Inconsistent verdict’

Charges: Assault occasioning bodily harm x 2; common assault x 1; endangering the life, health or safety of a person x 1.

Proceedings: Appeal against conviction.

Grounds of Appeal: The appellant appealed the sentence on two grounds:

The guilty verdicts with respect to assault occasioning bodily harm are inconsistent with the not guilty verdict with respect to the common assault and endangering life charges

The guilty verdicts were unreasonable and not supported by the evidence adduced at trial.

Decision and Reasoning: Leave to appeal refused. Appeal dismissed.

Arkeveld v DPP (WA) [2023] WASC 264 (17 July 2023) – Western Australia Supreme Court

‘ Appeal against conviction’ – ‘ Following, harassing and monitoring’ – ‘ Breach of protection order’ – ‘ Miscarriage of Justice’

Charges: Breaching a protection order x 6; aggravated stalking x 1.

Proceedings: Appeal against conviction.

Decision and Reasoning: Leave to appeal refused and appeal dismissed.

Kritskikh v Director of Public Prosecutions [2022] WASC 130 (21 April 2022) – Western Australia Supreme Court

Charges: Aggravated assault causing bodily harm x 1.

Proceedings: Appeal against conviction.

Issues:

Whether the court’s reasoning was consistent with how a jury would be directed in respect of the family violence provisions

Whether evidence relevant to the appellant’s degree of intoxication was wrongly excluded

Firstly, that the learned magistrate erred by excluding relevant evidence.

Secondly, that the magistrate erred by reasoning in a manner that was inconsistent with the family violence provisions of the Evidence Act 1906.

Decision and Reasoning: The appeal was allowed, with orders setting aside the convictions and ordering a retrial.

In considering the credibility and reliability of the evidence given by the appellant and Mr Williams, the Magistrate made the following findings:

In respect of the second ground of appeal, Justice Hall stated:

Sellenger v Turner [2021] WASC 308 (7 September 2021) – Western Australia Supreme Court

Charges: Breach of protection order x 2, stalking x 1.

Proceedings: Applications for extension of time and leave to appeal against sentence.

Decision and Reasoning: Applications for extension of time and leave to appeal against sentence allowed, appeal dismissed.

Pedrochi v Brown [2021] WASC 81 (25 March 2021) – Western Australia Supreme Court

‘Aggravated assault occasioning bodily harm’ – ‘Application for leave to appeal against sentence’ – ‘Manifest excess’ – ‘Strangulation’

Charges: Aggravated assault occasioning bodily harm x 1.

Proceedings: Application for leave to appeal against sentence.

Grounds of appeal:

The sentence was manifestly excessive.

The magistrate erred in her calculation of the date on which the appellant's sentence was to be backdated (out by 4 days).

Held: Application for leave to appeal granted on both grounds but appeal only allowed in part to correct a mathematical error in sentencing (vary date of commencement from 21 to 17 August 2019).

In addition, the court emphasised at [64] that:

Ground 2 upheld but only to correct the date from which the sentence commenced from 21 August 2019 to 17 August 2019.

Hill v Tomkin [2021] WASC 54 (3 March 2021) – Western Australia Supreme Court

‘Act causing bodily harm’ – ‘Appeal against sentence’ – ‘Glassing’ – ‘Imprisonment’

Charges: Act causing bodily harm x 1.

Proceedings: Appeal against sentence.

Grounds of appeal:

The magistrate erred in the calculation of the discount afforded for the guilty plea.

The magistrate erred in failing to take into account any factor in mitigation other than the guilty plea.

The magistrate erred in imposing a sentence of imprisonment when a sentence of last resort was not warranted.

The magistrate erred in imposing a sentence of immediate imprisonment when it was not inappropriate to suspend the sentence.

Held: Appeal was upheld on grounds 3 and 4, and the appellant re-sentenced by way of a community based order.

Dickerson v The State of Western Australia [2020] WASC 425 (18 November 2020) – Western Australia Supreme Court

Charges: Aggravated unlawful wounding x 1; Breach of protective bail conditions x 1.

Proceedings: Application for bail.

Issues:

Whether there were exceptional reasons why the accused should not be kept in custody.

Whether the grant of bail would otherwise be proper, having regard to other factors the court must consider under cl 1 and cl 3 of Sch 1 Pt C of the Bail Act 1982 (WA).

Decision and reasoning: Bail granted.

In addition, it was significant that the applicant had refused to have contact with the complainant while remanded in custody, even though she was permitted to do so. The court noted at [96]:

And continued at [97]:

S v Barnes [2020] WASC 327 (11 September 2020) – Western Australia Supreme Court

Charges: Aggravated common assault x 1.

Proceedings: Application for leave to appeal against conviction.

Grounds: (1) In making an assessment of the severity of the provocation, the magistrate failed to assess the totality of the complainant’s conduct.

Decision and reasoning: Leave to appeal refused.

It is clear from the magistrate’s reasons as a whole, and particularly the following passages, that the magistrate considered the totality of the complainant’s conduct:

Stockley v Bailey [2020] WASC 193 (8 June 2020) – Western Australia Supreme Court

Charges: Breaching a family violence restraining order x 6; possessing a controlled weapon x 1; aggravated home burglary x 1; deprivation of liberty x 1

Case type: Appeal against sentence

Grounds:

7 months' imprisonment was manifestly excessive; and

the total sentence of 3 years, 7 months was disproportionate to the overall criminality involved and the total sentence was crushing.

Held: Leave to appeal granted, appeal dismissed.

Hosking v The State of Western Australia [2020] WASC 167 (20 May 2020) – Western Australia Supreme Court

‘Bail application’ – ‘Controlling behaviours’ – ‘Physical violence and harm’ – ‘Risk of reoffending’ – ‘Separation’ – ‘Step-child in the family’ – ‘Weapon’

Offences: Breach of Police Order x 1; Common assault x 1; Assault causing bodily harm x 1; Being armed in a way that may cause fear x 1.

Proceedings: Bail application

Issue: Whether the applicant might reoffend if released from custody; whether there were conditions that could be reasonably imposed if bail were granted to ameliorate the risk of reoffending.

Riddoch v Chiera [2020] WASC 114 (7 April 2020) – Western Australia Supreme Court

Charges: Aggravated assault causing bodily harm x1;

Appeal type: Application for leave to appeal against sentence

Grounds:

The type of sentence imposed was manifestly excessive as it was reasonably open to His Honour, in all the circumstances, to suspend the term of imprisonment imposed. Particulars:

The plea of guilty and the relevance of the discount for that plea;

The appellant's antecedents;

Sentences imposed in, broadly, comparable cases;

The prosecution's concession as to the type of sentence open to the Court.

The learned Magistrate erred when he failed to adequately consider the imposition of a type of sentence less than one of immediate imprisonment.

The appellant entered a plea of guilty and was sentenced to 14 months’ imprisonment. The magistrate declined to suspend the term.

Clarke v Cantatore [2019] WASC 385 (28 October 2019) – Western Australia Supreme Court

‘Aggravating factor’ – ‘Assault’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Strangulation’ – ‘Totality’

Charges: Aggravated administration of a noxious thing to another person x 1; Aggravated common assault.

Proceedings: Appeal against sentences

The appellant was sentenced to 12 months imprisonment and was made eligible for parole.

RE Magistrate G Benn; EX Parte Gethin [2019] WASC 380 (15 October 2019) – Western Australia Supreme Court

‘Application for review order’ – ‘Cyber stalking’ – ‘Interim fvro’

Case type: application for review of an interim FVRO

Issue: Did the magistrate apply the wrong meaning of ‘family violence’

[Summary prepared by Lily Philp for Western Australian Magistrates Court]

Howell v Davies [2019] WASC 220 (27 June 2019) – Western Australia Supreme Court

Charges: 1 x breach of restraining order

Case type: Application for leave to appeal out of time and leave to appeal against sentence

Ground: The learned magistrate erred in finding that it would be necessary to find 'unjust circumstances' in order to suspend the term of imprisonment ([24]).

In assessing the gravity of the offence, Hall J listed relevant factors:

•

The breach occurred in the surroundings of a court, where the protected person was entitled to feel secure;

•

The appellant attended court for a hearing in relation to the order, so its requirements must have been known to him;

•

The approach was physical, and it is more likely that fear would be caused to a protected person in such a case;

•

This was the third breach of the same order within a 4-month period, demonstrating a persistent disregard for court orders and the appellant’s failure to be deterred by previous prison sentences;

•

The breach occurred just over 10 days after the appellant was released after serving, concurrently, 2 months for previous breaches (aggravating feature);

•

Goodacre v Lumbers [2019] WASC 184 (27 May 2019) – Western Australia Supreme Court

‘Appeal against conviction - guilty plea’ – ‘Breach of fvro’ – ‘Meaning of fvro term’

Charge/s: 1 x breach of FVRO

Case Type: Application for extension of time to appeal, appeal against conviction following plea of guilty

[Summary prepared by Lily Philp for Western Australian Magistrates Court]

Masoud v Dhaliwal [2019] WASC 56 (1 March 2019) – Western Australia Supreme Court

‘Fines’ – ‘Physical violence and harm’ – ‘Security officer’ – ‘Sentencing’ – ‘Strangulation’

Charges: Assault in circumstances of aggravation x 1.

Case type: Appeal against sentence.

Issues: The appellant appealed the sentence. Submissions included that:

•

The sentence would lead to a loss of employment, hardship and a loss of financial security.

•

Smartt v Sloane [2019] WASC 35 (5 February 2019) – Western Australia Supreme Court

‘Coercive and controlling’ – ‘Cumulation’ – ‘Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Protection orders’ – ‘Sentencing’

Charges: Breaches of a restraining order and a protective bail condition, stalking.

Appeal type: Appeal against sentence.

Bryant v Witts [2018] WASC 194 (27 June 2018) – Western Australia Supreme Court

‘Animal abuse’ – ‘Disclosure’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality’

Charges: Aggravated unlawful assault x 2; Aggravated unlawful assault causing bodily harm x 4; Cruelty to an animal causing it unnecessary harm x 1.

Appeal type: Appeal against sentence.

The appellant pleaded guilty and was sentenced to 22 months’ imprisonment ([48]).

Issues: Whether the sentence was manifestly excessive; whether the sentence infringed the first limb of the totality principle; whether a suspended sentence should have been imposed.

Decision and reasoning: The appeal was dismissed.

Re Magistrate G Mignacca-Randazzo; Ex parte Chown [2018] WASC 157 (11 May 2018) – Western Australia Supreme Court

‘Adjournments and timely decision making’ – ‘Fair hearing and safety’ – ‘Family violence restraining order’ – ‘Judicial review’ – ‘Victim experience of court processes’

Case type: Application for review of Magistrate’s decision not to make a final family violence restraining order and application for stay of proceedings.

Issues: Whether the applications should be granted.

Decision and Reasoning: Tottle J granted the review order and the stay of proceedings.

Labriola v Morgan [2017] WASC 256 (30 August 2017) – Western Australia Supreme Court

Charges: Obstructing a police officer x 1.

Appeal type: Appeal against conviction.

•

‘Prior family domestic violence incidents between the involved parties? Yes

•

Is the victim frightened? Yes

•

Is the abuse happening more often? Yes

•

Is the abuse getting worse? Yes

•

Financial issues? Yes (Issues surrounding the ownership of the two dogs)

•

Does the perpetrator try to control everything the victim does? Yes

•

Is the perpetrator excessively jealous? Yes

•

Does the perpetrator constantly text, call contact, follow, stalk or harass the victim? Yes

•

Has the perpetrator ever threatened to hurt or kill the victim? Yes

•

Has the perpetrator eve attempted to strangle/choke/suffocate/drown the victim? Yes

•

Other information: [the appellant] has grabbed [the complainant] by the throat in Dec 2014 and has tried to strangle one of the two dogs in the past’ ([57]).

Issues: One issue was whether the police could form a reasonable suspicion that the appellant had breached a violence restraining order by relying on a DVIR ([61](iv))

Dennis v Lanternier (No 2) [2017] WASC 5 (12 January 2017) – Western Australia Supreme Court

‘Breach of restraining order’ – ‘Following, harassing and monitoring’ – ‘Sentencing-protection of victims’ – ‘Threats’

Charges: Breach of violence restraining order (VRO) x 20.

Appeal type: Appeal against sentence.

Issues: There were 6 grounds of appeal:

the total sentence was manifestly excessive;

the Magistrate did not properly take into account the appellant's pleas of guilty which were entered at an early opportunity;

the Magistrate failed to consider totality when determining the aggregate sentence;

the Magistrate overlooked the appellant's personal circumstances including his wife's breaches of the Family Court consent orders and the appellant's mental state at the time of the offences;

the Magistrate made an error of fact by taking into account an untrue submission made by the prosecutor that the appellant had threatened his child; and

there was an error in recording the appellant's aggregate sentence as 18 months' imprisonment rather than 15 months' imprisonment ([3]).

Decision and Reasoning: Jenkins J dealt with the grounds of appeal in the following manner:

Dismissed ([142]-[175]).

Dismissed ([125]-[127]).

Dismissed ([128]-[137]).

Not possible to decide because part of the proceedings in the Magistrates Court had not been recorded. Jenkins J did not take this fact into account in deciding the appeal ([138]-[141]).

Dismissed. It was clear that the Magistrate meant to impose an aggregate sentence of 18 months’ imprisonment ([109]-[110]).

While Jenkins J accepted that ground 2 was made out, the appeal was dismissed because the error did not result in a substantial miscarriage of justice ([184]).

Jenkins J referred to the role of the Restraining Orders Act in deterring domestic violence at [152]:

Bindai v Armstrong [2016] WASC 341 (20 October 2016) – Western Australia Supreme Court

‘Miscarriage of justice’ – ‘Notice of application’ – ‘Violence restraining order’

Charges: Breach of violence restraining order (‘VRO’) x 1.

Appeal type: Appeal against conviction.

Issues: Whether the appellant’s conviction upon his own plea was a miscarriage of justice.

BV (on behalf of M, N and O) v TP [2016] WASC 228 (28 July 2016) – Western Australia Supreme Court

‘Evidence issues’ – ‘Exposing children to domestic and family violence’ – ‘Victim experience of court processes’ – ‘Violence restraining order’

Case type: Application for leave to appeal against Magistrate’s decision not to grant final violence restraining order (FVO).

Issues: Whether the Magistrate erred in law by summarily dismissing the proceedings.

Bacchelli v Merchant [2015] WASC 205 (9 June 2015) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Insanity’ – ‘Miscarriage of justice’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Plea of guilty’

Charge/s: Breach of violence restraining order.

Appeal Type: Appeal against conviction.

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

Bernard v Williams [2015] WASC 182 (30 April 2015) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Consent’ – ‘Immediate imprisonment’ – ‘Repeated breaches of a restraining order’ – ‘Temporary protection order’

Charge/s: Breach of violence restraining order.

Appeal type: Appeal against sentence.

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

Wallam v Grosveld [2015] WASC 145 (24 April 2015) – Western Australia Supreme Court

‘Breach of restraining order’ – ‘Imprisonment’ – ‘People affected by substance abuse’ – ‘Sentencing’

Charge/s: Breach of restraining order.

Appeal Type: Application for leave to appeal against sentence.

Issue/s: Some of the issues concerned –

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

Whether the sentence was manifestly excessive.

2. This argument was also upheld.

Rogers v Hitchcock [2015] WASC 120 (7 April 2015) – Western Australia Supreme Court

‘Breach of police order’ – ‘Criminal history’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Programs for perpetrators’ – ‘Sentencing’

Charge/s: Breach of police order.

Appeal Type: Appeal against sentence.

Issue/s: Some of the issues concerned –

Whether the Magistrate erred in sentencing the appellant to a term of imprisonment.

Whether the Magistrate erred in failing to suspend the term.

Whether the Magistrate erred in failing to backdate the sentence of imprisonment.

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

The Court held that it was within the Magistrate’s discretion to refuse to suspend the sentence.

Weston v Cartmell [2015] WASC 87 (16 March 2015) – Western Australia Supreme Court

‘Bail’ – ‘Breach of bail’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Totality’ – ‘Trespass’

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

Appeal Type: Appeal against sentence.

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

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

Bropho v Hall [2015] WASC 50 (9 February 2015) – Western Australia Supreme Court

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

Appeal type: Appeal against sentence.

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

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

The State of Western Australia v Carlino [No 2] [2014] WASC 404 (31 October 2014) – Western Australia Supreme Court

Charge/s: Murder.

Proceeding: Application to adduce certain expert evidence.

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

Taylor v The State of Western Australia [2014] WASC 292 (19 August 2014) – Western Australia Supreme Court

‘Assault causing bodily harm’ – ‘Bail’ – ‘Physical violence and harm’

Appeal type: Bail application.

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

Sturt v Ball [2013] WASC 343 (9 September 2013) – Western Australia Supreme Court

‘Breach of protection order’ – ‘Definition of 'approach'’ – ‘Protection order’

Charges: Breach of violence restraining order x 1.

Appeal type: Appeal against conviction.

The magistrate convicted the appellant on the basis that even though the appellant did not ‘approach’ the protected person, it was incumbent upon the appellant to immediately walk away ([12]).

Issues: Whether the verdict was unreasonable and could not be supported.

Mills v Hawley [2013] WASC 261 (3 July 2013) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Following, harassing, monitoring’ – ‘Sentencing’

Charge/s: Breach of violence restraining order.

Appeal Type: Appeal against sentence.

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

Decision and Reasoning: The appeal was upheld.

Brown v Bluett [2013] WASC 189 (14 May 2013) – Western Australia Supreme Court

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

Appeal type: Appeal against sentence.

Hamlett v Whitney [2013] WASC 100 (22 March 2013) – Western Australia Supreme Court

‘Aggravated assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Temporary protection order’ – ‘Totality’

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

Appeal type: Appeal against sentence.

Rowe v Gaunt [2013] WASC 90 (20 March 2013) – Western Australia Supreme Court

‘Breach of restraining order’ – ‘Expiration of restraining order’ – ‘Miscarriage of justice’

Charge/s: Breach of restraining order.

Appeal Type: Appeal against conviction.

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

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

Cramphorn v Bailey [2012] WASC 462 (30 November 2012) – Western Australia Supreme Court

‘Breach of protection order’ – ‘Protection orders’ – ‘Self-represented litigant’ – ‘Whether police restraining order must be served on the protected person’

Charges: Aggravated assault x 1; Breaching a police order x 1.

Appeal type: Appeal against convictions.

The appellant was convicted following a trial and was fined a total of $1,300 and granted a spent conviction order.

Issues: Multiple grounds, including that the restraining order was invalid because the police did not serve Mr Michalaros with a copy.

Decision and reasoning: The appellant was a self-represented litigant. The judge rejected all grounds of appeal. In relation to the argument that the police order was invalid the judge stated:

Harrison v Hunter [2012] WASC 166 (30 April 2012) – Western Australia Supreme Court

‘Aggravated assault’ – ‘Interests of child’ – ‘Perpetrator intervention program’ – ‘Sentencing’ – ‘Subsequent engagement in family violence programme’

Charge/s: Aggravated assault

Appeal Type: Appeal against sentence.

Kjellgren v Cameron [2012] WASC 80 (1 March 2012) – Western Australia Supreme Court

‘Aggravated assault occasioning bodily harm’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’

Charge/s: Aggravated assault occasioning bodily harm.

Appeal Type: Appeal against sentence.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld.

Messiha v Plaucs [2012] WASC 63 (24 February 2012) – Western Australia Supreme Court

Appeal Type: Appeal against sentence.

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

Decision and Reasoning: The appeal was upheld.

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

Musgrove v Millard [2012] WASC 60 (22 February 2012) – Western Australia Supreme Court

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

Appeal Type: Application for leave to appeal against sentence.

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

Stokes v Auckland [2012] WASC 2 (10 January 2012) – Western Australia Supreme Court

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against conviction and sentence.

Issue/s: Some of the issues concerned –

Whether the plea of guilty was made under duress and did not reflect his acceptance of the facts alleged by the prosecution.

Whether the sentence of 16 months for the latest assault was manifestly excessive and whether the total effective sentence was disproportionate to the overall criminality of the offending.

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

This argument was dismissed – see at [23]-[32].

Corrigan v Kirkman [2011] WASC 254 (11 July 2011) – Western Australia Supreme Court

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

Appeal type: Appeal against sentence.

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

Isenhood v Green [2011] WASC 70 (10 February 2011) – Western Australia Supreme Court

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

Appeal Type: Appeal against sentence.

Issue/s:

Whether the sentence was manifestly excessive.

Whether the Magistrate erred by taking into account hearsay and irrelevant material in the victim impact statement.

Whether the Magistrate erred by taking into account prior property damage offences in concluding that the appellant has the potential to act violently in the future.

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

The appellant was re-sentenced to a 12-month intensive supervision order which included programs to address anger management and alcohol abuse.

Morgan v Kazandzis [2010] WASC 377 (10 December 2010) – Western Australia Supreme Court

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

Appeal type: Appeals against conviction and sentence.

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

The learned magistrate erred by failing to suspend the terms of imprisonment imposed, when:

the learned magistrate failed to give consideration to whether the terms ought to be suspended; and

a suspension of the sentence was open in all of the circumstances.

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

Baudoeuf v Venning [2010] WASC 322 (17 November 2010) – Western Australia Supreme Court

‘Breach of violence restraining order’ – ‘Extenuating circumstances’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Suspended sentence’

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

Appeal Type: Appeal against sentence.

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

Decision and Reasoning: The appeal was upheld.

Lutey v Jacques [2010] WASC 78 (28 April 2010) – Western Australia Supreme Court

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

Appeal Type: Appeal against sentence.

Issue/s:

Whether the Magistrate erred by failing to adequately consider sentences other than imprisonment.

Whether the sentence was manifestly excessive.

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

The Court held that the Magistrate did sufficiently have regard to the possibility of other sentencing options, such as an intensive supervision order or a fine.

Sakkers v Thornton [2009] WASC 175 (22 June 2009) – Western Australia Supreme Court

Appeal Type: Appeal against sentence.

Issue/s: Some of the issues concerned -

Concurrency: Whether the sentence imposed for the breach offences should have been made concurrent with the sentence for the stalking offence because both offences involved the same acts.

Totality: Whether the Magistrate failed to have proper regard to the totality principle.

Whether the sentences were manifestly excessive.

Whether the sentence should have been suspended.

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

Paskov v Hull [2008] WASC 163 (28 July 2008) – Western Australia Supreme Court

Appeal Type: Application for leave to appeal against sentence.

Issue/s:

Whether the sentence was manifestly excessive.

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

Decision and Reasoning: Leave to appeal was refused.

Elliot v Blanchard [2007] WASC 289 (14 November 2007) – Western Australia Supreme Court

‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’

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

Appeal Type: Appeal against sentence.

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

Gilmour v State of Western Australia [2005] WASC 243 (8 November 2005) – Western Australia Supreme Court

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

Appeal type: Appeal against refusal of bail.

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

Last updated: July 2024

National Domestic And Family Violence Bench Book

Last updated: July 2024