Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Offences of threaten to kill, breach of violence restraining order and breach of protective bail conditions - Whether individual sentences manifestly excessive - Whether total effective sentence of 2 years' immediate imprisonment infringed totality principle

Butler v The State of Western Australia [2012] WASCA 249

Corrigan v Kirkman [2011] WASC 254

Dennis v Lanternier [No 2] [2017] WASC 5

Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551

Lesay v The State of Western Australia [2011] WASCA 154

Musgrove v Millard [2012] WASC 60

Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

Rowsell v The State of Western Australia [2015] WASCA 2

Sakkers v Thornton [2009] WASC 175

Sartori v The State of Western Australia [2014] WASCA 98

1 JUDGMENT OF THE COURT: The appellant was sentenced to a total effective sentence of 2 years' immediate imprisonment for 21 offences to which he pleaded guilty. He appeals against two of the individual sentences on the ground that they were manifestly excessive. He further alleges the sentencing judge erred in finding that the appellant was not remorseful. He also seeks leave to appeal on the ground that the total effective sentence infringes the first limb of the totality principle.

2 For the reasons that follow, we would dismiss the appeal.

3 The appellant pleaded guilty to one count in an indictment of making a threat unlawfully to kill, and 20 other offences brought before the court on a s 32 notice. These were one offence of stealing, seven offences of breach of protective bail conditions, one offence of breach of bail, eight offences of breach of a violence restraining order, one offence of possession of property reasonably suspected to be stolen, one offence of fraud, and one offence of breach of a police order.[1]

4 The breaches of a violence restraining order and of protective bail conditions arose in the context of the appellant's relationship with the complainant. They had been in a relationship for a period of about three weeks. During that time they had been living together at a house in Kelmscott.[2] The offences occurred across a period of three days in late September 2016 after their relationship had ended.

5 On 8 September 2016, the police were called to the Kelmscott house in relation to a confrontation between the appellant and complainant. The appellant's counsel told the court below that this arose after the appellant had come home to find the complainant having sex with another man. At 1.40 am the police issued the appellant with a 72-hour police order. The order stated that he could not enter or remain at the address, or be within 10 m of the boundary of the address, or approach within 100 m of the complainant.[3]

6 At 4.50 pm the same day, the appellant returned to the house and entered through an unlocked front door. He was confronted by a male who forced him outside. There was then a verbal argument involving numerous people and a minor altercation took place before the appellant left.[4] This conduct constitutes the offence of breach of police order (AR 12011/2016).

7 On 21 September 2016, the complainant obtained a violence restraining order against the appellant.

8 On 25 September 2016, the appellant booked into a bed and breakfast in Armadale under a false name and tried to pay using a stolen credit card.[5] This conduct constitutes the offence of fraud (AR 12012/2016).

9 On 27 September 2016, the appellant was arrested at the Kelmscott house in relation to another matter. The police located Medicare cards, a concession card and a National Australia Bank card in other people's names.[6] The cards had been stolen the day before. This conduct constitutes the offence of possession of property reasonably suspected to be stolen (AR 12013/2016).

10 Also on 27 September 2016, the police served the appellant with the violence restraining order. The order prohibited the appellant from communicating or attempting to communicate with the complainant by any means and from being within 50 m of her or within 100 m of the boundary of the Kelmscott house. It also prohibited him from behaving in an intimidatory, offensive or emotionally abusive way towards her.[7]

11 On 28 September 2016, the Magistrates Court bailed the appellant to appear on 4 October 2016. It was a condition of bail that the appellant be prohibited from contacting the complainant and from coming within 75 m of her or the Kelmscott house.[8]

12 The first breach of bail (AR 12876/2016) occurred on 4 October 2016 when the appellant failed to appear in court.[9]

13 Over the period of 6 and 7 October 2016, the appellant called the complainant many times, several of which were recorded, and sent her many text messages of a threatening and frightening nature.[10]

14 The first text message, sent at 4.21 pm on 6 October, constitutes the indictable charge of threaten to kill. That message was read out verbatim by the prosecutor at the sentencing hearing as follows:[11]

Next sight of me you see is going to be the 400 getting let off at close range to your head and, you know what, I'm not kidding. When you see the F6, the X5 litre and the black Dodge Chrysler with 20-inch chrome and four carloads of belly up with the maddest niggers with loaded firearms at you and no power, you know your life is at the end, that you're going on a personal boot ride and a week's torture and you might as well let us all gang bang you, slut. You would love that, wouldn't you? That's what you doing now, whore, and you like getting raped, don't you? LOL.

15 The first breach of violence restraining order (AR 12875/2016) is the subject of a ground of appeal of manifest excess. The charge relates to the phone conversations and text messages which occurred on 6 and 7 October that contain threats to kill, including the first message above.[12] Those messages and recordings were read out verbatim by the prosecutor at the sentencing hearing as follows:[13]

When Cameron and that come and get me, you're going to see the 410, you skank. I warned you, don't cheat, don't lie. You're going to see the 410 at close range. I'm not going to gaol for breaching the VRO because of you, you slut. I'm going to blow your brains apart and do 20 years.

Do you want this to stop, Sam, because I ain't joking about the 410. I'm just waiting on the boys to meet up at hotel where I am but you shouldn't of done what you did and you want to think again if you think you getting me locked up. Maybe I might just take your knee off first.

Yeah, all good, hang up you trashy lying slut because I promise you either you or someone close going to get shot.

Sam, put it this way. I hope all of them lies and cheating was worth it. You fuck me last night. Tell me you love me and lie. I'm going to get you tonight and teach you a lesson. If don't get you will get someone close to you.

You motherfucking dog. You are going to get killed you maggot. I warned you about pushing me, cunt. You are fucked. See you in a minute, maggot.

I'm giving you one chance to talk. If I was you, I would talk. You can record, do what you want. I'm telling you, I'm blowing your shoulders clean off, you dog.

Sam, I would talk if I was you because I'm going to blow your fucking head off you stupid dog. I'm not fucking kidding around and joking no more. See you in a minute, cunt.

I'm telling you now, Sam, I'm going to blow your head off your shoulders.

You can do what you want. Oh, you was with me last night ay, dog. I told you I swear now I'm going to gaol but for blowing your leg off or killing you.

I told you, don't tell me you love me and fuck me if you don't want to be with me because you broke my heart again. No more. I warned you, asked you nicely. Now I'm going to make you crippled for life or dead and it will be tonight.

Oi, I can promise you now, Sam, I got a 410 and you gave me up you dog and broke my heart again. I'm going to shoot him.

Oi, someone going to bomb you at court in front of police.

16 The second breach of violence restraining order (AR 13792/2016) and the corresponding breach of protective bail (AR 13793/2016) relate to 34 further text messages sent on 6 October which did not expressly amount to threats to kill.[14]

17 The third breach of violence restraining order (AR 13794/2016) and corresponding breach of protective bail (AR 13795/2016) relate to 61 attempted phone calls, five of which were answered, that took place on 6 October.

18 The fourth breach of violence restraining order (AR 13796/2016) and corresponding breach of protective bail (AR 13797/2016) relate to attempted phone calls, 12 of which were answered, that took place on 7 October.

19 The fifth breach of violence restraining order (AR 13798/2016) and corresponding breach of protective bail (AR 13799/2016) relate to text messages sent on 7 October.

20 The stealing offence (AR 13806/2016) also occurred on 7 October. The appellant went to Australia Post and asked to look at two mobile phones. He then asked to see a third phone and, as the shop assistant leant down to get it, the appellant left the store with the first two mobile phones without paying for them.[15]

21 The final groups of offences took place the following day on 8 October.[16] At approximately 10.15 am, the appellant rode an off-road motorcycle onto the front verge of the Kelmscott house, spun the wheels on the grass and left burnout marks before riding off. The appellant rode past the address several more times during the next few hours. The complainant was inside the unit at the time. This conduct constitutes the sixth breach of violence restraining order (AR 13800/2016) and corresponding breach of protective bail (AR 13801/2016).[17] The sentence for the breach of the protective bail conditions is the subject of a ground of appeal of manifest excess.

22 That same afternoon, the appellant also called the complainant three times making threats towards the complainant's mother and children. This conduct constitutes the seventh breach of violence restraining order (AR 13802/2016) and corresponding breach of protective bail (AR 13803/2016).[18]

23 Later that night at approximately 9.30 pm, the appellant again rode an off-road motorcycle on the road past the Kelmscott house and stopped briefly about 20 m from the unit. The appellant rode off after he was approached by a visitor who was at the house. This conduct constitutes the eighth breach of violence restraining order (AR 13804/2016) and corresponding breach of protective bail (AR 13805/2016).[19]

24 The sentencing judge outlined the facts of the appellant's offences, and made a number of observations about serious features of the appellant's offending.

25 The appellant was 26 years old at the time of the offending so he no longer had the benefit of youth.[20] He had a substantial prior criminal record including offences of aggravated armed robbery, arson, aggravated burglary, burglary, dishonesty offences and breaches of bail. There were also a conviction for assaulting a public officer and convictions for a breach of violence restraining order and aggravated stalking relating to the appellant's long term partner.[21]

26 The sentencing judge observed that the appellant's record suggested specific deterrence was a significant sentencing consideration.[22]

27 The appellant had a dysfunctional childhood. His father was verbally and violently abusive towards him and his mother. When his mother commenced a new relationship, the appellant and his siblings moved in with their grandmother who raised them from then onwards.[23]

28 The appellant was expelled from high school for violence.

29 The appellant has issues with substance abuse. He started drinking alcohol at age 13. He started using methylamphetamine in his mid-teenage years and has continued to use illicit drugs since.[24]

30 The appellant had a history of intermittent employment in semi-skilled and unskilled work, but his drug use had often interfered with his work.[25]

31 The sentencing judge had the benefit of a pre-sentence report, psychological report and psychiatric assessment.[26] The appellant told the psychologist that the complainant was his drug dealer, they both used methylamphetamine, and she was consistently unfaithful. The sentencing judge observed that the appellant focussed strongly on the complainant's alleged infidelity as justification for his behaviour.[27]

32 The psychiatric report did not suggest that the appellant suffers from any kind of major mental disorder. He suffers mild depression and has antisocial personality features. His substance abuse causes a self-induced mental and behavioural disorder.[28]

33 All of the reports recommended that the appellant deal with his substance abuse issues. There are also recommendations for anger management counselling, and domestic violence counselling.[29] The judge observed that previous programs undertaken while in prison had not been successful, and the appellant had not engaged in any programs of his own volition.

34 The sentencing judge observed that there was little in the way of mitigation in the appellant's personal circumstances other than his fast-track pleas of guilty attracting a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).[30]

35 The sentencing judge also observed that some mitigation should be attached to the appellant's highly dysfunctional childhood.[31]

36 The sentencing judge was not persuaded that the appellant felt genuine remorse for the complainant.[32] That finding is the subject of ground 4 of the appeal.

37 The appellant was given no credit for cooperation with the police.[33]

38 In relation to the offending against the complainant, the sentencing judge described it as relentless and characterised the text messages as extremely threatening and vicious. Whilst the appellant did not stand in front of the complainant with a weapon, the appellant referred multiple times to an impending plan to shoot her.[34]

39 The judge observed that the complainant must have been worried for her safety and for the safety of her mother and children. She must have also felt quite helpless given that the police order, the violence restraining order, and the protective bail conditions were not having any effect on the appellant's behaviour.[35]

40 The appellant's harassment of the complainant was not confined to only three days. Rather, the three days of behaviour for which charges were laid represent the worst of the appellant's behaviour. The sentencing judge found that the harassment occurred from the time the relationship ended until the time the police arrested the appellant.[36]

41 The sentencing judge recognised that general deterrence was an important sentencing consideration. The appellant breached a police order, violence restraining order and a bail undertaking with protective bail conditions. The fact that he had repeatedly been undeterred by all of these revealed how relentlessly driven he was. The sentencing judge observed that the complainant should have felt protected by the orders, and that courts need to send a clear message that those who breach these sorts of orders will be punished.[37]

42 The judge further observed that the appellant's record suggested that specific deterrence was a significant sentencing consideration.[38] She referred to the assessment in the psychiatric report that he presented a medium risk of future violent offending.[39]

43 Her Honour concluded that only a term of immediate imprisonment was appropriate. That conclusion is not challenged on appeal. Rather, the appeal asserts that the terms imposed were too long so as to reveal error.

44 The judge stated that totality loomed large in determining the length of sentences. Her Honour observed that it was important to take into account the nature of the offending and the aggravating features that it had, the persistence of the offending, the need for specific and general deterrence, and the protection of the community. Her Honour imposed the following sentences:

- attempted gaining benefit by fraud: 3 months' imprisonment;

- possession of stolen property: 4 months' imprisonment;

- breach of violence restraining order (AR 12875/2016): 9 months' imprisonment;

- the remaining seven breaches of violence restraining order: 6 months' imprisonment on each charge;

- seven breaches of protective bail: 6 months' imprisonment on each charge; and

45 Her Honour determined that the sentences on the threaten to kill, breach of violence restraining order (AR 12875/2016) and breach of protective bail (AR 13801/2016) be served cumulatively upon each other, but all of the other sentences be served concurrently.[40] Thus, the total effective sentence was 2 years' immediate imprisonment.

46 The appellant advances the following grounds of appeal:

1. The sentence of 9 months imprisonment imposed for the breach of VRO charge (AR 12875/2016) was, in all the circumstances, manifestly excessive;

Particulars:

1.1 The plea of guilty;

1.2 The appellant's antecedents;

1.3 The criminality involved;

1.4 Sentences imposed in broadly comparable cases.

1. The sentence of 6 months imprisonment imposed for the breach of protective bail conditions (AR 13801/2016) was, in all the circumstances, manifestly excessive;

Particulars:

2.1 The plea of guilty;

2.2 The appellant's antecedents;

2.3 'The criminality involved;

2.4 Sentences imposed in, broadly comparable cases.

1. The learned sentencing Judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality, having regard to the overall criminality involved in the various offences, when viewed in their entirety, and in all the circumstances of the case, including the fact the height of the offending occurred over a relatively short three day period, and those referable to the appellant.

1. It was not reasonably open for the sentencing Judge to find, as she did, that there was no remorse on the part of the appellant;

Particulars:

4.1 The appellant had expressed unchallenged remorse for his offending.

47 On 21 August 2017, leave to appeal was granted in respect of grounds 1 and 2. The question of leave on grounds 3 and 4 was referred to the hearing of the appeal.[41]

Appeals against sentence: general principles

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.

49 As ground 4 complains of an express error, it is convenient to begin with that ground.

50 Ground 4 asserts that the judge erred in finding that there was no remorse on the part of the appellant.

51 Before the sentencing judge, counsel for the appellant pointed to the conclusion in par 14 of the psychologist's report that 'overall, it is suggested that [the appellant] accepts a reasonable level of responsibility for his offending behaviour'. Counsel submitted that, since the interview for the psychologist's report, the appellant had greater insight and remorse.[42] In response, the sentencing judge referred to the letter that her Honour had received from the appellant, suggesting that nothing in it indicated any remorse. Counsel did not challenge that view of the letter, suggesting it probably indicated a level of insight rather than remorse.[43]

52 Counsel informed her Honour that the appellant had asked to engage in victim offender mediation with the complainant, but that had not been taken up.[44]

53 In sentencing the appellant, her Honour said, relevantly, as follows:[45]

I have read your letter to the court. I can see that you regret that you have committed these offences because of the position that it's placed you in and also your partner and your children ...

... I'm not at all persuaded that you feel genuine remorse for the impact of your offending upon your victim. I can accept that you really regret the fact that you committed these offences because it's got you in a lot of trouble and you're in prison, but you appear to focus very much on her behaviour during the relationship with minimal understanding, it would seem, of how bad this must have been for her. You seem to skirt responsibility for this offending by blaming it on both her and the drugs when you voluntarily take the drugs, knowing how they affect you.

Your letter to me shows that you understand the impact of your offending on your partner and your children, but I'm still seeing no real insight or remorse in relation to the impact on the victim. And I certainly can't give you any sort of credit for cooperation with the police.

Your interview with them consisted of you attempting in an entirely unconvincing fashion to lie your way out of it. You said everything you could to the police to insult and denigrate [the victim] and accepted no responsibility yourself.

54 On appeal, the appellant points to what is said in par 14 of the psychologist's report. It reads, relevantly, as follows:

At interview [the appellant] acknowledged his guilt and appeared to be remorseful for his offending behaviour, with him stating for example 'I'm sorry for what I've done ... I feel bad'. While perhaps some degree of justification was also present when he continued by stating 'even though what she's done to me'. He qualified this with 'at the end of the day she doesn't care about me and I shouldn't have done it'. It is also noted that he denied writing the SMS text message, stating that 'a mate wrote it but I sent it'. Overall, it is suggested that he accepts a reasonable level of responsibility for his offending behaviour.

55 The appellant also points to the statement in the psychiatric report that the appellant had 'expressed remorse'.

56 The appellant submits that what is said in this material, together with the appellant's request to engage in the victim offender mediation, meant that remorse should have been found as established and considered as a mitigatory factor, and the contrary was not open.

57 The appellant asserts, by ground 4, that the judge found there was no remorse on the part of the appellant. That misstates the effect of what her Honour said. Her Honour's remarks were directed to remorse in a specific respect: 'remorse for the impact of your offending upon your victim'. That was what her Honour was not persuaded of. That conclusion was open to her Honour, for the reasons that follow.

58 A plea of guilty is not assumed to be indicative of remorse.[46] Remorse is not to be equated with sorrow for being caught, or regret on the part of the offender so that they face imprisonment or some other kind of sanction.[47] An assertion of remorse on behalf of an offender does not have to be accepted by a sentencing court, if, as occurred in this case,[48] it is put in issue by the prosecutor or if the court indicates that it may not be prepared to accept it.[49] The offender bears the onus of establishing remorse on the balance of probabilities.[50] In determining whether an offender is remorseful, a sentencing judge is entitled to have regard to the offender's conduct as a whole.[51]

59 The statement in the psychiatric report on which the appellant relies goes no further than to record that the appellant had 'expressed' remorse. That did not require the judge to accept the genuineness of that expression of remorse. Whether the judge was satisfied, on the balance of probabilities, as to the appellant's alleged remorse required attention to the whole of the appellant's conduct, not merely to one paragraph of the psychologist's report. The psychologist's statement that the appellant accepted a reasonable level of responsibility for his offending is not to be equated with remorse for the effect of his offending on the victim. In any event, there was ample material that tended against a conclusion that the appellant was remorseful for the effect of his offending on the victim. The author of the pre-sentence report said as follows:

Although [the appellant] expressed regret for his offending, of concern is he displayed minimal victim empathy and insight and attempted to focus on the victim's alleged infidelity and the impact this had upon him.

The lies told by the appellant to the police, in denying any involvement in the sending of the text messages, reinforced the sentencing judge's entitlement not to accept assertions of remorse made by the appellant. It was also open to the judge to take into account that in his letter to the judge the appellant referred to the hurt he had caused to his children, partner and mother but made no reference to the effect of his offending on the victim.

60 In our opinion, on the whole of the material before the sentencing judge, it was well open to her Honour not to be satisfied on the balance of probabilities as to the appellant's remorse for the impact of his offending on his victim. We would refuse leave to appeal on ground 4.

Ground 1: was the sentence for the first breach of the violence restraining order manifestly excessive?

61 Ground 1 challenges the sentence for the first breach of the violence restraining order, being AR 12875/2016. The sentencing judge imposed a term of imprisonment of 9 months for this offence to be served immediately. The offence is constituted by seven texts and five phone messages sent mostly on 6 October 2016 and one on 7 October 2016.

62 The maximum sentence available for this offence is 2 years' imprisonment. Taking into account the 25% discount for the plea of guilty, and the fact that her Honour identified other mitigating factors, it is apparent that the sentencing judge's starting point was something higher than 50% of the statutory maximum. In circumstances where, as the appellant emphasises, he did not commit any actual violence against the complainant, and was not physically present, the sentence imposed can fairly be said to be high.

63 Nevertheless, we are not persuaded that the sentence is so high as to reveal an implied error. The violence restraining order prohibited the appellant from any form of communication with the complainant. The appellant's conduct in breaching the violence restraining order was not isolated or a momentary lapse. It was a sustained course of intentional conduct. The communications by the appellant contained a series of abusive threats to the effect that the appellant intended to kill or maim the complainant. The appellant's references to the complainant in terms such as slut, skank, maggot, cunt and dog were not merely abusive and offensive. The use of those terms conveyed an intense antipathy to the complainant that increased the apparent reality of his threats to kill or maim her. The threats were conveyed with a powerful sense of imminence and immediacy. They were intended to terrify the complainant into thinking that the appellant intended to kill or seriously maim her by shooting her or, having regard to the text message sent at 11.12 am on 7 October 2016, by a bomb. These features of the appellant's offence meant that it was a very serious example of an offence against s 61(1) of the Restraining Orders Act.

64 As Jenkins J observed in Dennis v Lanternier [No 2]:[52]

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 a 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.

65 The sentencing judge rightly observed that both general deterrence and personal deterrence were significant sentencing considerations in this case.

66 The appellant's submissions refer to three decisions of a single judge on appeal from a magistrate's sentencing for one or more offences against s 61(1) of the Restraining Orders Act. It is not necessary to refer to those cases in any detail. Consistency in sentencing is to be achieved through the decisions of this court.[53] In any event, these cases, in some of which substantial terms of immediate imprisonment were imposed, albeit not for terms as long as the present case, are readily distinguishable from the circumstances of the present case. Moreover, manifest excess is not established by demonstrating that the sentence is high when compared to one or two individual decisions concerning comparable offending committed by comparable offenders.[54]

67 In all the circumstances, we are not persuaded that the sentence of 9 months' immediate imprisonment is manifestly excessive. For these reasons, ground 1 fails.

Ground 2: was the sentence for the sixth breach of the protective bail conditions manifestly excessive?

68 Ground 2 challenges the sentence for the fifth breach of the protective bail conditions, being AR 13801/2016. The sentencing judge imposed a term of immediate imprisonment of 6 months.

69 The bail condition specifically prohibited the appellant from contacting the complainant and from going within 75 m of her or her house. The appellant signed a bail undertaking that included and was subject to those conditions.

70 The maximum sentence available for this offence is 3 years' imprisonment.

71 The appellant's conduct in riding an off road motor cycle on the verge of the complainant's house, spinning the wheels and doing a 'burn out' might, if it occurred in isolation, be seen as merely oafish conduct that did little harm. In this case, the appellant's offending, viewed in its context, was not of that character.

72 The appellant's breach of the protective bail conditions on 8 October 2016 was not an isolated breach. Rather, it was part of a course of conduct by which the appellant deliberately breached the conditions of his bail. In doing so, he denied the complainant the protection to which she was entitled, and flouted the authority of the court. Moreover, in the context of the threatening communications from the appellant that preceded this conduct, the appellant's conduct was intended to intimidate, and would have intimidated, the complainant, as the appellant accepts.[55]

73 As we have said, personal deterrence was an important factor in this sentencing exercise. The appellant had previous convictions for breach of bail and for breaching a violence restraining order.

74 The appellant refers to three decisions, one of which is a decision of this court. Three cases is an inadequate foundation from which to discern patterns of sentences customarily imposed. Further, we refer to our earlier observations regarding decisions of judges of the General Division on appeal from magistrates. In Butler v The State of Western Australia,[56] the offender was sentenced to 3 years and 6 months' imprisonment for an offence of aggravated burglary, and a term of 6 months, to be served cumulatively, for an offence of breaching protected bail conditions. The appellant submits that the fact that the offender in Butler received 6 months' imprisonment for worse offending after having pleaded not guilty 'plainly demonstrates' that the appellant's sentence of 6 months after a 25% discount for his plea of guilty was manifestly excessive.[57] That is far from the case. The dismissal of an appeal against sentence does not fix the range by reference to the sentence imposed below. Moreover, there was no complaint in Butler as to the length of the sentence for the offence of breach of bail. The relevant complaint, which was dismissed, was one of totality.

75 We are not persuaded that the sentence of 6 months' immediate imprisonment is so high as to demonstrate error. Consequently, ground 2 fails.

76 If, contrary to our view, it were found that the sentence of 6 months' imprisonment on this charge was manifestly excessive, it would not affect the total effective sentence we would impose. In our view, for the reasons explained in dealing with ground 3, the appropriate total effective sentence is a term of at least 2 years' immediate imprisonment.

Ground 3: did the total effective sentence infringe the first limb of the totality principle?

77 Ground 3 contends that the total effective sentence of 2 years' immediate imprisonment infringed the first limb of the totality principle. The appellant emphasises that his offending all occurred within the space of three days, and that it did not involve any physical contact or actual violence.[58] He also emphasises his pleas of guilty and the insight said to be shown in his letter to the sentencing judge.[59]

78 Count 1, the offence of threaten to kill, was a serious offence in its own right, carrying a maximum term of 7 years' imprisonment. While the threat was not made while the appellant and complainant were face to face, the tone and text of the threat conveyed its immediacy. That threat was by no means isolated. To the contrary, the appellant's offending reflected in the other charges persisted for more than two days.

79 There is no challenge to the sentencing judge's characterisation of the appellant's conduct as 'violent, frightening, vicious and relentless behaviour'.[60] As the sentencing judge observed, the appellant was undeterred by the police order, the violence restraining order, and his bail undertaking with protective bail conditions from his relentless campaign to terrorise the complainant. Both general deterrence and specific deterrence were significant sentencing considerations. We would firmly endorse the judge's observation that there was 'a serious need to impose a sentence which gives [the appellant] the message that you need to learn some self-control in relationships'.[61]

80 We repeat what we have said in dealing with grounds 1 and 2 as to the serious nature of the appellant's offending [63], [72].

81 The appellant submits that because the text message constituting the threat to kill was part of the conduct constituting charge AR 12875/2016 of breaching the violence restraining order, the two terms should have been partly rather than wholly cumulative on one another.[62] We do not accept that submission. It is clear that the judge was aware of the overlap.[63] Partial accumulation of the sentences was not the only available response to the existence of that overlap. It was also open to the court to determine the length of those two sentences in a way that accommodated and reflected the overlap. In our view, the judge's sentencing remarks reveal that that is how her Honour approached it.

82 The appellant accepts that there was room for some accumulation of the 6-month term imposed for the breach of protective conditions, given that its breach was of a different character, namely a physical act, as distinct from the communications involved in the other breaches. However, the appellant submits that all of the offences were 'committed over a relatively short period in order to intimidate the protected complainant, thereby all offences taken together constitute a single invasion of the same legally protected interest'.[64] Consequently, it is said that partial accumulation would 'have better reflected the appellant's overall criminality'.[65]

83 We do not accept that all of the appellant's offences, or even all of his offences of breach of protective bail conditions, breach of violence restraining order and threaten to kill can be characterised as constituting a single invasion of the same legally protected interest. The protective bail conditions and the violence restraining order each created its own obligations upon the appellant, and a corresponding right on the part of the complainant, for the appellant not to act contrary to each of them. Of course, there was significant commonality in the conduct by which the appellant contravened the violence restraining orders and the protective conditions. That is a matter to be taken into account in determining the total effective sentence and in structuring the sentences, but it does not mean that all the offences were a single invasion of the same legally protected interest.

84 Insofar as the appellant invokes the 'one transaction rule', that so-called rule does not assist the appellant. As the appellant acknowledges, the one transaction rule is no more than a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close in time or in a spree is proportionate to the offender's overall criminality.[66] The real question is whether the total sentence properly reflects the overall criminality of the offender's offending, having regard to all its circumstances and the offender's personal circumstances.[67]

85 The appellant also points to three decisions in single judge appeals, submitting that a comparison of the sentence in this case reveals an infringement of the totality principle.[68]

86 These cases do not assist the appellant. As we have said, three cases is an inadequate foundation from which to discern patterns of sentences customarily imposed. We repeat what we have said as to the utility of single judge appeals for present purposes. In any event, none of the cases is a useful comparator. None of the cases included an offence of threaten to kill, an offence carrying a maximum of 7 years' imprisonment. The first two did not involve breaches of a violence restraining order through a sustained series of threats, including repeated threats to kill; the communications were not of a violent threatening nature. The third was concerned with double punishment.

87 We are far from persuaded that the total effective sentence was unreasonable or plainly unjust. In our view, the total sentence of 2 years' immediate imprisonment is well within the range of sentences that properly reflect the overall criminality of the appellant's offending, viewed in its entirety, having regard to all the relevant facts and circumstances including those referable to the appellant personally and having regard to all relevant sentencing factors. Indeed, were we exercising the sentencing discretion afresh, we would have imposed a total effective sentence of at least 2 years' immediate imprisonment.

88 For these reasons, we would refuse leave to appeal on ground 3.

89 For these reasons, we would make the following orders:

[1] The following outline is taken from the sentencing remarks of the primary judge, and reflects the facts stated by the prosecutor before her Honour.

[13] ts 18 - 20. In these messages the appellant refers to the complainant as Sam.

[46] Rowsell v The State of Western Australia [2015] WASCA 2 [16].

[52] Dennis v Lanternier [No 2] [2017] WASC 5 [152]; see also Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27 [14].

[53] Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551 [161].

[54] Sartori v The State of Western Australia [2014] WASCA 98 [30].

[55] Appellant's submissions [104], [108].

[56] Butler v The State of Western Australia [2012] WASCA 249.

[58] Appellant's submissions [125], [134].

[60] ts 62; appellant's submissions [112].

[66] Lesay v The State of Western Australia [2011] WASCA 154 [21]; Butler v The State of Western Australia [2012] WASCA 249 [53].

[67] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28]; Lesay [21].

[68] Appellant's submissions [122] - [134], referring to Corrigan v Kirkman [2011] WASC 254; Musgrove v Millard [2012] WASC 60; and Sakkers v Thornton [2009] WASC 175.