File No : PE 16918 of 2010, PE 16919 of 2010, PE 16920 of 2010

Criminal law - Appeal - Breach of violence restraining order - Threats to injure - Taking prejudicial material in victim impact statement into account - Whether sentences manifestly excessive

Re­sentenced to an intensive supervision order for 12 months with programme requirements

Bastin v Edwards [2009] WASC 346

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ethridge v The Queen [2004] WASCA 152

Forward v Bower [2007] WASC 205

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lutey v Jacques [2010] WASC 78

The State of Western Australia v Bennett [2009] WASCA 93

1 JENKINS J: (These reasons were delivered orally and have been edited from transcript.) The appellant, Michael Isenhood, appeals against his sentences in the Magistrates Court at Perth on 18 May 2010 for breaching a violence restraining order (VRO) and making threats to injure. On the same date he pleaded guilty to an offence of wilfully destroying property and received a concurrent sentence of 3 months' imprisonment. Although the appeal notice can be interpreted as appealing against that sentence also, his counsel has indicated to me today that there is no appeal in respect to it.

2 In respect to the charges that are the subject of appeal, the appellant was sentenced to 12 months' imprisonment on each of those charges; those sentences were ordered to be served concurrently. The appellant was remanded in custody after his trial on those offences, that is, after the magistrate had found him guilty of them, on 27 April 2010. He was then released to bail, pending appeal on 23 September 2010. In the meantime, he had been sentenced to 1 month's imprisonment for a charge of contempt of court. That sentence was ordered to be served cumulatively on his sentences for the appeal offences. Consequently, if that is taken into account, he has in fact served approximately four months in custody on the appeal offences.

3 The background to this matter is that the complainant in respect to the VRO and threats to injure offence had a partner who I will call Melanie. A child, who I will call A, was born to the relationship in October 2005 and was only a few months old when the complainant and Melanie separated in late February 2006. By 2007 Melanie had formed a relationship with the appellant. Melanie was principally responsible for the welfare of A and this inevitably meant that the appellant and the complainant came into contact with one another.

4 In early August 2007 certain events took place at the home of the complainant arising out of the interim arrangements for access to A. These events prompted the complainant to seek a VRO on behalf of his daughter against the appellant. An order was sought to prevent the appellant: 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; from committing an act of abuse against A; and from exposing A to an act of family and domestic violence. Later in 2007 a magistrate confirmed the interim VRO with respect to A.

5 The appellant was charged with an offence relating to the incident which led the complainant applying for that VRO. On 10 March 2008, the appellant was tried and acquitted of assaulting the complainant. The magistrate was satisfied that the appellant had punched the complainant, but was not satisfied beyond reasonable doubt that the appellant was not acting in self-defence.

6 The conflict between the complainant and the appellant unfortunately did not end there. In November 2009 the complainant applied for and was granted a VRO preventing the appellant from communicating in any way with him, the complainant. That order was served on the appellant. On 9 February 2010 the appellant was charged with the offences which are the subject of this appeal. The breach of the restraining order and the threat occurred at the same time.

7 The threat was made by telephone to the complainant and was heard on the speaker phone by the complainant's girlfriend. The words spoken by the appellant were, 'I'm going to kill you and A'. The threat was made in the context of a number of telephone calls which the appellant made at approximately 10.00 pm on the evening of 14 January 2010 to the complainant. The telephone calls commenced at about 10.00 pm at night and kept going every couple of minutes.

8 The complainant answered the telephone at, approximately, the sixth call. As I said, he put it on speaker phone and the appellant was heard to yell the words which I have previously quoted. The appellant pleaded not guilty to the charges. On 27 April 2010 the matter went to trial. On the same date the magistrate convicted the appellant of the charges. He was then remanded in custody. On 18 May 2010 the magistrate sentenced the appellant to the terms of imprisonment that I have referred to.

9 On 10 June 2010 the appellant lodged an appeal notice against the sentences. On 1 September 2010 I made orders granting the appellant leave to substitute certain grounds of appeal for those contained in the appeal notice. The grounds of appeal against the sentence were:

1. the magistrate erred in law in imposing sentences of imprisonment which were manifestly excessive;
2. the magistrate erred in law when sentencing the appellant by taking into account hearsay and irrelevant material in the victim impact statement, which state that the appellant was not given an opportunity to respond to; and
3. the magistrate erred in law when sentencing the appellant by taking into account an irrelevant consideration, namely that the appellant violently attacked an ATM and may therefore be violent to the complainant or others in the future.

10 When this appeal was listed for hearing, the appellant indicated that he would like an opportunity to obtain legal advice and/or representation. I adjourned the hearing of the appeal on three occasions so that he could do that. Both the appellant and the court have been grateful that legal aid was granted to the appellant in respect to the appeal. Today he has been represented by counsel.

11 In respect of the second ground of appeal, that is, that the magistrate erred by taking into account irrelevant material in the victim impact statement, the respondent concedes that an error was made in that regard. The magistrate had before her a lengthy and discursive statement from the complainant. The victim impact statement covered the history of the dispute between the appellant and the complainant from the complainant's point of view.

12 It did not simply address the issues or facts the subject of the convictions. It was much broader than that and covered the whole of the history between the complainant and the appellant. The appellant's counsel has described it as inflammatory. I would agree with that description.

13 Of course it was not known to the sentencing magistrate whether the matters contained in the victim impact statement were true or not, but they were certainly matters which would have been disputed by the appellant. The magistrate should not have taken them into account without giving the appellant an opportunity to challenge them. In reality a lot of the matters were irrelevant to the question of sentence. The respondent has correctly conceded that the magistrate should not have taken those matters into account. She should have made it clear to the appellant that she had not done so.

14 In respect of the third ground of appeal, that is, that the magistrate took into account an irrelevant consideration, that is, that the appellant had violently attacked an ATM and may therefore be violent to the complainant or others in the future, this was said in the context of the criminal damage offence for which the appellant was also sentenced. He had violently attacked an ATM machine. It was perhaps drawing too long a bow to suggest that because the appellant had attacked the ATM, that he would or may attack people in the future.

15 That ground, I must say, would not, however, cause me to allow the appeal. It would seem to me that if it was a comment made by the magistrate that should not have been made, it did not result in a substantial miscarriage of justice.

16 In respect of the first ground of appeal against sentence, that is, that the magistrate erred in law in imposing sentences of imprisonment which were manifestly excessive, this court cannot interfere merely because it would have imposed sentences that were different to the magistrate.

17 It may only interfere where it is shown that the sentencing magistrate made an express or implied material error of fact or law. If a sentence is manifestly excessive, it is unreasonable or unjust and error will be inferred: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

18 The maximum penalty for the offence of breaching a VRO is 2 years' imprisonment and the maximum summary penalty for making a threat is 18 months' imprisonment. That is a jurisdictional limit. The maximum penalty is 6 years. The maximum summary penalty for criminal damage is 3 years' imprisonment.

19 The circumstances of the offence of breach of the VRO were not at the upper end of the range of seriousness of offences of this type. This is because there was no physical contact or actual violence. The contact was via the telephone and there was no risk of such contact occurring immediately. On the other hand, the offence was not trivial either. It occurred in the context of a long-running dispute between the complainant and the appellant. It included a threat of actual violence. Also it was made at night time when the complainant was in his own home and with a third party who the magistrate found was very scared by the threat.

20 The parties have referred to a number of cases to establish the range of penalties for the offence of breaching a VRO. They include Forward v Bower [2007] WASC 205 in which Le Miere J dismissed an appeal involving sentences of 7 months' imprisonment for each of two breaches of a VRO. In that case the breaches had involved injury to the complainant. The offender had entered early pleas of guilty.

21 Another case is Bastin v Edwards [2009] WASC 346 in which McKechnie J dismissed appeals against sentences of 14 months comprising 4 months' imprisonment for each of three breaches of a VRO.

22 The first breach involved damage to a car for which the appellant was sentenced to 10 months' imprisonment. The other threats were threats by telephone. The last of the 4-month sentences was ordered to be served cumulatively. That offender had prior convictions for breach of restraining orders and the magistrate noted the need for general and personal deterrence. That offender had pleaded guilty.

23 In Lutey v Jacques [2010] WASC 78, Simmonds J reviewed the standards of sentencing customarily imposed for this offence. As his Honour said, the proper approach to sentencing for the offence:

[I]s 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) [62].

24 However, these factors do not mean that a custodial sentence is appropriate in all cases, or that mitigating factors will be given no weight.

25 In respect of the sentencing standards for the offence of threat to kill, I have had regard to two cases which, although they deal with different factual situations, have been of some assistance. They are The State of Western Australia v Bennett [2009] WASCA 93 and Ethridge v The Queen [2004] WASCA 152.

26 Bennett involved a threat by a male offender to his estranged wife against a background of domestic violence between the respondent and the complainant. The complainant was clearly afraid of the respondent. He had abused her on numerous occasions, and in the days leading up to the threat he had frightened her by putting his face against hers and saying to her in an aggressive manner, 'I'll do 25 over you; if I can't have you, no-one will'. He did this on more than one occasion.

27 In consequence of the respondent's behaviour, the complainant was forced to leave her home and to stay away from the respondent. She was afraid that he would kill her. The Court of Appeal described the offence as very serious and said that a sentence of 9 months' imprisonment was manifestly inadequate. Were it not for totality issues, the court was of the view that a sentence of 2 years' imprisonment would have been appropriate.

28 In Ethridge, the Court of Appeal did not interfere with the sentence of 18 months' imprisonment imposed on an offender for threatening to kill a police officer when the offender was in the presence of the police officer and had access to a replica pistol. The offender pleaded guilty and had personal circumstances in his favour. In the case of threats to kill public officers, there are public policy considerations which aggravate the offence. Those circumstances are not present here.

29 At the time the magistrate sentenced the appellant, there were no mitigating factors which had any significant impact on the sentencing process. The appellant did not plead guilty. He was not young and he had no personal circumstances which reduced his moral culpability. He had six previous convictions for breaching a VRO. The latter convictions related to this complainant. Clearly, a personally deterrent penalty was required.

30 The appellant was not remorseful for his offending. Previously, he had received fines for breaching VRO's. These fines had not had a deterrent effect on him. The same considerations apply in respect to the threat offence. However, as I have said, the offences were not the most serious examples of offences against the relevant statutory provisions. There were no attempts to carry through with the threats and no indication that the appellant had any intention to do so, other than the threats themselves.

31 At the time of his conviction, the appellant was no longer in a relationship with the complainant's ex partner. He was not having any contact with A and there was no reason to believe that the offences would be repeated.

32 As I have said, a Court of Appeal is not to substitute its own opinion for that of the sentencing judge merely because it might have exercised its discretion in a manner different from the manner in which the sentencing magistrate exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672. However, taking all matters relevant to the offences into account, whilst a sentence of imprisonment to be immediately served was not outside the exercise of an appropriate sentencing discretion, I am of the opinion that the seriousness of the offences did not warrant a 12-month term of imprisonment. The sentence on each count in that regard was manifestly excessive.

33 The respondent has said that applying the proviso there was still no substantial miscarriage of justice in respect to the sentences that were imposed. In my view, for the reasons which I have given, that is not the case. I am of the view that the sentences for each of these offences was manifestly excessive.

34 That then leads to the question of re-sentencing. I have received submissions from the appellant about his current circumstances. I am required to take into account his current circumstances when I re-sentence him. One of his circumstances is that he has already served some four months in custody in respect to these offences. Another circumstance is that, since he was released to bail pending appeal, he has complied with his bail conditions which require him to report three times per week to the police. Another circumstance is that in the period of time that he has been on bail, that is since September 2010, he has not been charged with any further offences.

35 I also take into account that, since the date of these offences, that is 14 January 2010, he has been charged with two further offences, one of those is the criminal damage offence for which he was dealt with at the same time; that offence was committed on 13 February 2010. The second offence for which he has been dealt with is the charge of contempt for which he was sentenced on 3 June 2010 to a period of 1 month imprisonment; he has served that term of imprisonment. That means that he has not committed any offence in the community since February 2010.

36 The offence of contempt is indeed a serious charge, but that was committed in the context of the proceedings in the Magistrates Court for these offences that are the subject of appeal. I have read the transcript of 3 June 2010. It is clear that the appellant behaved in an immature and inflammatory manner before the magistrate; he should not have done so. It does indicate to me that the appellant continues to have some anger management problems and he continues to have difficulty reacting in an appropriate manner when he is under stress.

37 On the other hand, I also take into account that he has now been with his partner for some period of time. At the end of last year, he and his partner had a child. That child is living with the appellant and his partner.

38 I have had the benefit of speaking to the appellant on a number of occasions when he has appeared before me prior to when he was represented. Those exchanges gave me some hope that the appellant is maturing. When I spoke to him in court he responded to me in an appropriate manner. He appreciated that it would be of benefit to him to obtain legal advice and representation. He went and got that advice; he got that representation. As I have said, the exchanges that I have had with him over the course of this appeal has given me some hope that he is maturing, especially in the context of him now having the responsibility for a partner and his child.

39 I am also now told that he is looking for work. He has had difficulty in finding work due to his responsibility to report on bail. The fact that he has understood that he has those responsibilities and he has complied with them is another reason why I hope that he is showing some maturity.

40 Finally, I am told that Melanie and A have now moved interstate and there is no reason why he, that is the appellant, would have any contact with them. That, I accept, decreases the chance of the appellant having any contact with the complainant as well.

41 Given all those matters, in my view it is appropriate to re-sentence the appellant to an intensive supervision order for both charges. That intensive supervision order will be for a period of 12 months and it will have a supervision and program requirement. The program requirement should address issues relating to anger management and alcohol abuse to the extent that the supervising officer thinks that it is necessary to address those issues.

42 Mr Isenhood, please stand. I am allowing your appeal against sentence in respect to the breach of the VRO and the threat offence. I set aside the sentences of imprisonment imposed for those offences and I re-sentence you to an intensive supervision order for a period of 12 months with program and supervision requirements. You will be required to report to community corrections within 72 hours of this point in time. Ms Farley can advise you where community corrections is if you do not know. Mr Isenhood, you should regard yourself as being very fortunate that you are not returning to custody today. The respondent said that that would be the appropriate thing to happen. I am not going to order that. As I have said though, I do think that it was open for the magistrate to send you to prison when she did. I just think that she sent you to prison for too long. It is very much in your interests now, and I am sure that you appreciate it, that you stay out of trouble, that you not commit any offences. If you commit any offence in the next 12 months, the maximum penalty for which includes imprisonment, then you can still be brought back before me and I can still send you to prison. I am sure you do not want that to happen.