File No : PE 41506 of 2010, PE 42401-42429 of 2010, FR 11764-11765 of 2010, PE 5009-5010 of 2011

Criminal law and procedure - Appeals against sentence - Sentences for aggravated common assault, breaches of violence restraining orders and breaches of protective bail conditions - Taking into account times spent in custody with respect to individual sentences - Whether individual sentences were manifestly excessive - Whether total sentence was contrary to first limb of totality principle

Bail Act 1982 (WA) s 51

Criminal Appeals Act 2004 (WA) s 14

Sentencing Act 1995 (WA) s 87

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

Boyle v State of Western Australia [2010] WASCA 97

Brown v State of Western Australia [2010] WASCA 228

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

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

Dominik v Volpi [2004] WASCA 18

Eves v State of Western Australia [2008] WASCA 7

Forward v Bower [2007] WASC 205

Furber v The Queen [2008] WASCA 233

Giglia v State of Western Australia [2010] WASCA 9

Isenhood v Green [2011] WASC 70

Joyce v Gee [2010] WASC 76

King v The Queen [2001] WASCA 198

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

Lutey v Jacques [2010] WASC 78

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Moore v Hoddell [2009] WASC 380

Morgan v Kazandzis [2010] WASC 377

Mourish v State of Western Australia [2006] WASCA 257

Narkle v Hamilton [2008] WASCA 31

Nguyen v State of Western Australia [2007] WASCA 114

Paskov v Hull [2008] WASC 163

Plenty v Bargain [1999] WASCA 67

R v Clarke and Coulton (1996) 87 A Crim R 441

R v Lamdley (1989) 40 A Crim R 430

Ratcliff v The Queen (Unreported, WASCA Library No 980651, 3 November 1998)

Roffey v State of Western Australia [2007] WASCA 246

Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

State of Western Australia v Collier [2007] WASCA 250

The State of Western Australia v Glossop (Unreported, WASCSR, INS 128 of 2010, 1 November 2010)

The State of Western Australia v Kutzer (Unreported, WASCSR, INS 146 of 2010, 14 January 2011)

The State of Western Australia v Little (Unreported, WASCSR, INS 129 of 2010, 16 December 2010)

The State of Western Australia v Scardina (Unreported, WASCSR, INS 143 of 2010, 2 December 2010)

(This judgment was delivered extemporaneously on 11 July 2011 and has been edited from the transcript.)

1 This is an application for leave to appeal and appeal against sentence. On 17 February 2011, in the Magistrates Court in Perth, Magistrate Wheeler convicted the appellant on his pleas of guilty to 34 charges. The offences were all related to a Ms M, with whom the appellant had had a domestic relationship between November 2009 and February 2010 and a casual relationship thereafter.

(1) 29 offences of breach of a violence restraining order with which the appellant had been served on 12 April 2010, an order prohibiting the appellant, amongst other things, from communicating with Ms M: the 29 offences were committed over the period 23 April 2010 to 28 April 2010 by communicating with her by mobile telephone (the VRO offences);

(2) Four offences of breach of protective bail conditions over the period 26 June 2010 to 19 November 2010: one, on 26 June 2010, was being within 100 metres of Ms M, contrary to a condition under the bail undertaking the appellant had entered into on 14 May 2010; one, on 25 September 2010, was being within 50 metres of Ms M, contrary to conditions under a bail undertaking he entered into on 6 August 2010, and another later on the same day of communicating by text message to Ms M, contrary to a condition in that bail undertaking that he not communicate with her; and finally, one, on 19 November 2010, of being within 50 m of Ms M, contrary to the 6 August 2010 bail undertaking (the bail offences); and

(3) One offence of common assault committed in circumstances of aggravation under the Criminal Code, those circumstances being the family and domestic relationship with Ms M: this offence was involved in the incident I last described in respect of the bail offences, namely, the incident on 19 November 2010 (the aggravated assault offence).

3 On 17 February 2011, Magistrate Wheeler sentenced the appellant, on the offences in (1) to (3), to a total effective term of 12 months' imprisonment to be immediately served, made up as follows:

• on the aggravated assault offence, 8 months (the head sentence);
• on the bail offence involved in the same incident, 4 months concurrent;
• on the two bail offences committed on 25 September 2010, 4 months each, cumulative on the sentence for the assault offence and apparently to be understood as concurrent on one another;
• on the bail offence of 26 June 2010, 2 months, apparently to be understood as concurrent with the head sentence, and
• on the VRO offences, 6 months each, concurrent with each other and apparently to be understood as concurrent with the head sentence.

4 The appellant was made eligible for parole on the sentences.

5 On the same day, 17 February 2011, Magistrate Wheeler convicted and sentenced the appellant to fines for four driving offences. However, this appeal does not in any way relate to those convictions or sentences, save that they have some significance for one of the grounds of appeal, as will be seen.

6 In these reasons I first set out the grounds of appeal. I then deal with the principles applicable to the grant of leave to appeal before dealing with each ground separately. The final section is my conclusions.

7 These reasons necessarily will be somewhat lengthy. It is therefore appropriate that I indicate now what my conclusion is. My conclusion is that this appeal should be allowed, that the sentences should be set aside and that I should receive submissions from counsel on the re-sentencing of the appellant for the offences in question.

9 I should begin by noting that the appeal notice in this matter did not relate to the sentence for the bail offence on 26 June 2010. However, the respondent had no objection to that being treated as included in the appeal, and I so treat it. The grounds of appeal are three, as follows:

(1) The learned sentencing Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the offences viewed in their entirety and all the circumstances of the case, including those referable to the Appellant personally.

(2) The individual sentences imposed by the learned sentencing Magistrate were manifestly excessive, having regard to the circumstances of the case, including those referable to the Appellant personally.

(3) The sentencing Magistrate erred by not taking into account time spent in custody by the Appellant prior to sentencing, pursuant to section 87 of the Sentencing Act 1995.

10 Prior to turning to the matter of leave to appeal, I should indicate that, for reasons which will emerge, I consider that the grounds are best dealt with in reverse order, namely, ground 3 first, followed by ground 2 and then ground 1.

12 As to leave to appeal, it did not seem to be in contest that the applicable principles are sufficiently stated for my purposes in Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [56] (Steytler P, Wheeler and Roberts-Smith JJA):

Leave to appeal must not be granted unless the single Judge (or three-member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.

The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper.

13 As will become evident, I consider that leave should be granted on all grounds in accordance with those principles.

15 Magistrate Wheeler stated that he took this matter into account in his sentencing remarks as follows:

That's 12 months. Now, I've considered whether it should be backdated but what I've done and decided, the answer is, no. It will run from today because I've given you allowance for time spent in custody by cutting down the sentence I would have otherwise given had I simply given you everything was (indistinct) on the accumulated penalties for the different days. And I've also allowed for early pleas et cetera by reducing the amount to 12 months.

17 The matter of time spent in custody is one of some complexity in this case. It was common ground that there were four periods during which the appellant was on remand prior to his sentencing on 17 February 2011. As explained to me, those periods were as follows:

• 10 April 2010 to 14 May 2010 (35 days): the appellant was on remand for charges, none of which were of offences sentences for which were the subject of the appeal; on 14 May 2010 he was released to bail;
• 28 June 2010 to 6 August 2010 (42 days): the appellant was returned to custody by virtue of a charge for the first bail offence on 26 June 2010 and another charge, later withdrawn; on 6 or 7 July 2010, he was charged with the VRO offences, the ones from 23 April to 28 April 2010; and on 6 August 2010 he was released on bail to appear on 24 November 2010;
• 22 November 2010 to 6 December 2010 (15 days): the appellant was returned to custody on the driving offences as well as the charges for the bail offences committed on 25 September 2010 (as well as a further charge later withdrawn) and for a number of which he was sentenced on 17 February 2011; on 24 November 2010, his bail, granted on 6 August 2010, was extended to 8 December 2010; on 6 December 2010 he was interviewed in prison in relation to the bail offence on 19 November 2010 and the aggravated assault offence, and was told he would be summonsed on those charges; and on 7 December 2010 he served one day as a remand prisoner for fine defaults; and
• 8 December 2010 to 16 February 2011 (72 days): on 8 December 2010 the bail granted on 6 August 2010 was not extended and the appellant was remanded in custody on charges of all the offences the subject of the appeal until the sentencing on 17 February 2011.

18 I did not understand the applicable principles in relation to time in custody to be in contest. They are sufficiently set out for my purposes in Narkle v Hamilton [2008] WASCA 31 (Steytler P, McLure and Buss JJA), from which I take the following propositions, in my words, not necessarily the words in Narkle.

(1) In sentencing an offender, a court has the power to take time spent in custody on remand into account, a power which is discretionary in character: [31] and [32];

(2) The discretionary power includes whether to make an allowance for that time, and if so, how much of an allowance to make: [40];

(3) The discretionary power does not extend to backdating a sentence unless Sentencing Act 1995 (WA) s 87 applies: [31];

(4) Sentencing Act s 87, in requiring for its application that the offender has spent time in custody in respect of the offence 'and for no other reason' (s 87(a)), does not apply at least where the offence or offences for which the appellant was being sentenced was not a reason or the only substantial reason for the time spent in custody in question, such as where the offender's custody is warranted both on the offence or offences for which the offender is being sentenced and on another offence or offences for which the offender was sentenced on an earlier occasion or is to be tried or sentenced on a later occasion; however, that discretionary power otherwise may apply in such cases, that is to say, the general discretionary power is restricted in those cases to other forms of allowance: see [25], [29] referring to King v The Queen [2001] WASCA 198 [34] and [35] referring to R v Heaney (Unreported, VSCA, 27 March 1996);

(5) In some circumstances, including where the time spent in custody is considerably more than could properly be imposed on the offender for the offence, the discretionary power extends to suspending a term of imprisonment: [48]; and

(6) The discretionary power extends to reducing a fixed term of imprisonment by an appropriate period; but there would ordinarily be no reason to take the prior period of custody into account in that way where the offence for which the offender is being sentenced was committed after serving time in custody in respect of a charge upon which the offender was subsequently acquitted: [31], [44].

19 The appellant's submission is not that Magistrate Wheeler erred in not backdating any of the sentences for the time spent in custody. In any event, it is not evident to me in the circumstances of this case that it would have been in error not to take account by backdating rather than, as Magistrate Wheeler indicated he had, by reducing the sentence of imprisonment by an appropriate amount, or some other accounting. See (1), (5) and (6) above. Indeed, it seems to me in respect of at least some of these offences that backdating was not an option because Sentencing Act s 87 did not apply. See (4) above.

20 Nor was it suggested that Magistrate Wheeler should have taken into account the period 10 April 2010 to 14 May 2010, which it appears was also the position of counsel for the appellant in his plea of mitigation before Magistrate Wheeler. However, while it might be suggested Magistrate Wheeler, in respect of the VRO offences, should have taken account of the time in custody to 14 May 2010 after commission of those offences, it may be noted that they were committed while he was in custody, which might supply a reason not to take account of those periods while in previous custody as indicated. See (1) above. However, I consider I do not need to go further into the matter as it was not contended before me that he should have proceeded in respect of that period otherwise than he may have done.

21 However, it was submitted that it would have been an error for Magistrate Wheeler not to take into account, by reducing the sentence of imprisonment, the full length of the following periods, reducing that length by that full period as follows:

• in respect of the bail offence of 26 June 2010 and the VRO offences, by reducing for the full length of the periods 28 June 2010 to 6 August 2010 (42 days), and 8 December 2010 to 16 February 2011 (72 days);
• in respect of the bail offences of 25 September 2010, being the periods 22 November 2010 to 6 December 2010 (15 days), and 8 December 2010 to 16 February 2011 (72 days);
• finally, in respect of the bail offence on 19 November 2010 and the aggravated assault offence on the same day, being the periods 22 November 2010 to 6 December 2010 (15 days) and 8 December 2010 to 16 February 2011 (72 days).

22 It may be noted that, in respect of the VRO offences and the bail offence of 19 November 2010 and the aggravated assault offence of that date, it is submitted account should be taken of periods after the commission of, but before being charged with, the relevant offence. In my view, that is within the scope of the discretionary power here. See (4). So too are the forms of accounting contended for - see (1) and (4) - subject to the point I made earlier.

23 As to whether it would have been an error not to take into account, as indicated, the full length of the periods I have spelt out, I note the authorities that support the proposition that, in the absence of some reason to deprive an offender of a part of it, a sentencing judge should be expected to give full credit for the relevant period. See R v Clarke and Coulton (1996) 87 A Crim R 441, 442 - 443 (Ipp J; Wallwork and Owen JJ agreeing), citing authorities and quoting R v Lamdley (1989) 40 A Crim R 430, 436 (Malcolm CJ) and 440 (Kennedy J).

24 There is authority where it was said that in a case of fault which has resulted in custody, where it is attributable to the person concerned, as where bail on an offence is revoked because of breach of bail, the matter is different. See Ratcliff v The Queen (Unreported, WASCA Library No 980651, 3 November 1998) 5 (Murray J; Anderson and Kennedy JJ agreeing), applied in Forward v Bower [2007] WASC 205 [49], [50] (Le Miere J), which, as I will indicate, was a VRO case. In this case it seems to me that this authority would indicate it would be within the proper exercise of discretion with respect to time in custody not to allow credit or full credit for time in custody in respect of the periods for the bail offence of 26 June 2010 and the VRO offences, after the period 28 June 2010 to 6 August 2010. However, this authority would not seem to clearly apply in respect of the other offences given that the appellant was returned to and remained in continuous custody from 22 November 2010 on account of them or the relevant ones of them.

25 Ground 3 thus becomes, on this reasoning, a direction of my attention to whether or not Magistrate Wheeler did in fact reduce the sentences in question as he indicated he would.

26 Counsel for the respondent, for her part, conceded that the sentence on the first bail offence of 2 months could be seen to be, as I understood her, manifestly excessive after account is taken for the time in custody as I have indicated and, as I further understood her, after account for other mitigating matters. That conclusion, however, would not lead to the upholding of the appeal, for other reasons, as I will indicate.

27 As to the sentence for the remaining offences, a conclusion whether the same should be said of them, that is, that they were manifestly excessive, depends on a result of the consideration of ground 2, the manifest excessiveness ground.

28 I turn to that ground. However, I mention at this point, in respect of the 2 month sentence, that even were it to be set aside on its own, I am unable to see how it would result in the present appeal being upheld. At the same time, as I will indicate, I believe that this appeal should be upheld on other bases.

29 There is no contest as to the applicable principles. I consider they are sufficiently stated for my purposes in State of Western Australia v Collier [2007] WASCA 250 [18] to [19] (Steytler P; McLure and Miller JJA agreeing), referring to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; and Chan v The Queen (1989) 38 A Crim R 337, as follows:

In any appeal against sentence an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes ... It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale ..., 324 - 325.

In order to determine whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan ..., 342.

30 This ground, to succeed, requires the appellant to show that one or more of the individual sentences 'fell outside the range of a sound exercise of sentencing discretion': Furber v The Queen [2008] WASCA 233 [46] (Murray AJA; Buss and Miller JJA agreeing), referring to Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [25], [28] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

31 A manifest excessiveness ground may succeed in either of two ways, as explained in Boyle v State of Western Australia [2010] WASCA 97 [38] (Blaxell J; McLure P and Owen JA agreeing):

In the end, a determination that a sentence is manifestly excessive is a conclusion which often does not admit of amplification beyond stating the respect in which the sentence is excessive. It may be excessive because the wrong type of sentence was imposed (for example, custodial rather than noncustodial) or because the sentence imposed was manifestly too long. The degree of elaboration that is possible will vary from case to case (Dinsdale at 325 - 326).

32 However, as I understood the appellant's submissions, they were that manifest excessiveness had been shown in the lengths of the sentences, not the failure to suspend them, that is to say, that the failure to suspend them, considered on its own, was within the range of the sound exercise of sentencing discretion, although of course not necessarily an exercise with which the appellant would agree.

33 There was particular emphasis laid by the appellant on the sentence of 8 months for the aggravated assault offence. I deal with that offence first, followed by the sentences for the VRO offences and then the bail offences. In each case I consider each of the four matters from Chan (342) as referred to in Collier [19].

34 The maximum penalty prescribed for this offence as at the date of the offence here, 19 November 2010, was imprisonment for 3 years and a fine of $36,000: Criminal Code (WA) s 313(1)(a). That was also the maximum as at the dates of the offences for the aggravated assault sentencings or decisions as to sentencings which I now reach.

35 As to the standards of sentencing customarily observed with respect to offences of aggravated assault, the only authority counsel were able to find was Morgan v Kazandzis [2010] WASC 377 [75] to [76] and the other paragraphs I will refer to.

36 That case was also an appeal against sentence in respect of an aggravated assault occasioning bodily harm (see [66] - [74]). There is a larger body of appellate authority, it seems, on sentencings for aggravated assault occasioning bodily harm, to which reference is made in Morgan (see [69] - [71]).

37 The appellant made some reference to those aspects of Morgan also. However, the maximum penalty for the offence of aggravated assault occasioning bodily harm, under Criminal Code s 317(1)(a), was and is 7 years' imprisonment, and for assault occasioning bodily harm, under s 317(1)(b), 5 years. In view of the greater maximum penalties for those offences, I consider only limited guidance can be gained from them for my purposes.

38 As to that limited guidance, I note the observations in Morgan [70] that there is no clear pattern or tariff for sentences for assault occasioning bodily harm because of the greatly different circumstances in which the offence may be committed. I consider that the sentence upheld for aggravated assault occasioning bodily harm in Morgan and for assault occasioning bodily harm in Mourish v State of Western Australia [2006] WASCA 257, to which Morgan refers, go some way to illustrate the point for both forms of assault occasioning bodily harm.

39 In Morgan, one sentence was of 9 months' immediate imprisonment for a 'vicious' assault upon the offender's partner, who was particularly vulnerable, being much younger, in a prior relationship with the offender and pregnant at the time of the assault. There was no plea of guilty and no 'favourable antecedents' (see [69]). The other sentence was of 15 months' immediate imprisonment for the repetition of the same unlawful conduct very shortly thereafter, revealing, so it was said, a lack of any compassion or appreciation of the wrongfulness of the conduct (see [74]).

40 In Mourish a sentence for assault occasioning bodily harm of 2 years' imprisonment suspended for 2 years was imposed on a plea of guilty, after the inclusion of the transitional period discount, involving a punch in the face of a 'relatively minor nature' was not disturbed: [4] (McLure JA; Steytler P and Wheeler JA agreeing).

41 Morgan did not disturb the sentence for aggravated assault of 9 months' immediate imprisonment after trial. The assault consisted of the offender, a 42-year-old male, applying force with his shoulder to the chest of a 15-year-old girl causing her to fall backwards and hit her head on the ground. He did so in the presence of other children, which was the circumstance of aggravation.

42 The incident was in the context of an exchange the offender initiated in which he had confronted the group over events in which young girls had sworn at his nephew. The incident occurred in the early hours of the morning at the victim's home. The offender had gone to the home with members of his family for the purpose of remonstrating with the young girl. The offender had prior convictions including assault occasioning bodily harm, burglary, disorderly conduct and hindering the police but no prior sentence of imprisonment.

43 There are three sentencings in this court for aggravated assault which I was able to find, and on which neither counsel sought an opportunity to make submissions to me. Those sentencings, on pleas of guilty in each case, were for 9 months before allowance for time in custody: The State of Western Australia v Glossop (Unreported, WASCSR, INS 128 of 2010, 1 November 2010), Murray J; 12 months before allowance for time in custody; The State of Western Australia v Little (Unreported, WASCSR, INS 129 of 2010, 16 December 2010), EM Heenan J; and 3 months The State of Western Australia v Kutzer (Unreported, WASCSR, INS 146 of 2010, 14 January 2011), Blaxell J.

44 These sentencings, with Morgan, show, in my view, no clear pattern for aggravated assault, nor a tariff, and this for the same reasons as for both forms of assault occasioning bodily harm to which I have referred.

45 So far as the authorities on sentencing for aggravated assault go, they do not clearly support the view that a sentence of 8 months' immediate imprisonment after credit for 87 days' of custody (see above) is outside the range of sound sentencing discretion before other matters are taken into account: see in particular Little.

46 As to the place which the criminal conduct occupies on the scale of seriousness of crime of that type, the prosecutor's account of the offence, with which the defence did not disagree before Magistrate Wheeler, was that the offender was outside Ms M's place of work at about 4.45 pm on Friday, 19 November 2010. She saw him as she left work, and he came after her, grabbing the strap on her handbag and swinging it around. She maintained her grip on it. He again pulled on the handbag with enough force to cause her to fall to the ground, hitting her head. He stood over her, pulling on the strap while she screamed at him to go away, arousing the attention of a male passerby, who called out to ask if she was all right. At that point the offender ran off. Ms M suffered bruising to her right arm and right thigh and received some medical treatment.

47 Counsel for the offender, in the plea in mitigation before Magistrate Wheeler, described the background to the offence as that Ms M and the offender had arranged to meet on the occasion in question for her to return a necklace belonging to the offender. She had refused to return the necklace. He saw it in the handbag, and that was why he grabbed at the handbag. He had not seen her hit her head or suffer any of the injury I have referred to by the time he came to leave. The prosecutor did not take issue with this account.

48 At the time of the offending, as Magistrate Wheeler noted, the offender was subject to a violence restraining order and was waiting to be dealt with for the VRO offences. He was also subject to protective bail conditions, for breach of which he was also waiting to be dealt. It was apparently not in contest that Magistrate Wheeler properly treated these as particular aggravating circumstances.

49 Counsel for the appellant laid emphasis on the 'volatile' relationship between the appellant and Ms M as the context to the background of the offence that I have described. I understood him to rely on those matters to make good his submission that the assault should be placed at the 'lower end' of seriousness of aggravated assaults. However, in my view Magistrate Wheeler, who had earlier noted the offender's 'very fractious and effectively toxic relationship' with Ms M, was, in the context of the nature of the assault and the injuries it caused, minor as they might have been as described to him, and of the particular aggravating circumstances he described, justified in approaching the aggravated assault, as he appeared to approach it, as a more serious offence than that.

50 As to the personal circumstances of the offender, there were two matters particularised and referred to by counsel for the appellant, with a further matter in connection primarily with ground 1 but also correctly pressed as to this ground. The three were the appellant's early plea of guilty, the characterisation of the appellant's antecedents, and the appellant's time in custody on this offending.

51 As to the plea of guilty, Magistrate Wheeler stated towards the end of his sentencing remarks that he had 'allowed for early pleas', as I have indicated. The appellant's submission was, when viewed in combination with other matters of the criminality involved in the offending and the appellant's criminal record, and, as I understood counsel, the time spent in custody, it was not clear what allowance had been made for the plea of guilty.

52 It is of course well understood - and I did not take counsel for the appellant to be taking issue with this - that it is not an error for a sentencing judicial officer to fail to set out the quantum of the discount for a plea of guilty. Rather, I understood the submission for the appellant to be that I needed to take into account a discount for the plea of guilty, appropriate to an early plea of guilty, to evaluate properly whether the sentence was manifestly excessive.

53 As to the appellant's antecedents, it was accepted that the appellant's criminal record included drug offences, damage to property, stalking and driving offences, to which I would add, having inspected the record, previous breaches of a violence restraining order in 2002 and 2009 and trespass. In addition, it was accepted that the appellant had been on a community based order at the time of the majority of offences for which Magistrate Wheeler had sentenced him on 17 February 2011.

54 However, counsel for the appellant submitted that the antecedents were not of such a nature as to be labelled as one showing the appellant had 'failed miserably', which was the label Magistrate Wheeler had applied to them. Further, they did not show a need for personal deterrence, which Magistrate Wheeler stated was an 'issue' which was 'quite strong'. However, I consider the latter remark not to add significantly to the label Magistrate Wheeler had applied that I have referred to.

55 As to the time in custody for assault, I have previously referred to a period of 87 days on this account.

56 Overall, on the aggravated assault, I consider that viewing the sentence of eight months' immediate imprisonment in the perspective described, it was not manifestly excessive. It was undoubtedly a severe sentence, having regard to the gross ups for the plea of guilty and the time in custody, in the light of the sentencings for this offence I have referred to. However, while it may be arguable the appellant's antecedents did not merit the description of a miserable failure, it is, in my view, unarguable that there was no mitigation to be derived from them, and they were evidence of a significant need for personal deterrence. Further, there was no mitigation to be had from the appellant's age, 33.

57 Finally, there were the particular aggravating circumstances to which Magistrate Wheeler referred, being the VRO, on the breach of which he was awaiting hearing, and the protective bail conditions, on the previous breaches of which he was also awaiting hearing, to be weighed with the 'volatile' character of the appellant's relationship with Ms M, out of which the violence restraining order had come and which was the immediate background to the appellant grabbing her handbag repeatedly. These matters, taken together, in my view are such that the sentence has not been shown to be outside the range of the exercise of a sound sentencing discretion.

58 I turn to the offences on which substantially less emphasis was laid, beginning with the VRO offences.

59 As to the VRO offences, the maximum penalty prescribed for this offence was a fine of $6000 or imprisonment for 2 years, or both: Restraining Orders Act 1997 (WA) s 61(1).

60 Counsel for the respondent drew my attention to the increase in the maximum penalty for this offence in 2004, from 18 months to 2 years, by the same legislation which added the circumstance of aggravation for the offence under Criminal Code s 313 of family and domestic relationship applicable in this case. That legislation was Acts Amendment (Family and Domestic Violence) Act 2004 (WA). I took this to be a submission, for VRO offences committed since the amendments, particularly in respect of ones involving a family and domestic relationship, that Parliament was requiring the courts to regard offences of that kind more seriously than previously. There is support for a submission of that kind in State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [35] (Wheeler and Pullen JJA; Owen JA agreeing).

61 As to the standards of sentencing customarily observed with respect to VROs, the only authority to which I was referred by either counsel was Dominik v Volpi [2004] WASCA 18 (Roberts-Smith J). Counsel for the respondent drew this authority to my attention for its statement - see [80] - that in relation to this offence '[t]he need for general and individual deterrence will ordinarily outweigh subjective or other mitigatory considerations'.

62 However, I note that there have been more recent considerations of sentencings for VRO offences for cases in which, unlike Dominik itself, the offences were committed after the amendment I have referred to came into force, and, moreover, were ones involving family and domestic relationships. See Isenhood v Green [2011] WASC 70 [20] - [24] (Jenkins J) where a sentence of 12 months' imprisonment on a plea of guilty for a breach of a violence restraining order involving a telephone call heard by a child of the relationship in which the offender threatened to kill the complainant was found manifestly excessive, referring among other authorities to Lutey v Jacques [2010] WASC 78 (Simmonds J). In Lutey I found a sentence of 7 months' immediate imprisonment on a plea of guilty where there was 'no conduct of a threatening or intimidatory sort' ([68]; see also [82]) to be manifestly excessive. I noted that the approach in Dominik did not involve no account being taken of subjective or mitigating factors, particularly in cases, unlike Dominik itself, not involving threatening or intimidating conduct: see Lutey [64]. I drew those authorities to counsel's attention in the appeal before me, but neither sought an opportunity to make submissions as to them.

63 On the authorities I have referred to, the sentences of 6 months here, grossed up for a total of 42 days, and before allowance for pleas of guilty and other matters, appear to me to be severe.

64 As to the place which the criminal conduct occupies in the scale of seriousness of crimes of this type, I note that there was no evidence of threat or intimidation put to Magistrate Wheeler, save in a respect I will shortly reach.

65 The prosecutor described the offences as first involving a mobile phone call by the appellant from prison, where the appellant was in custody on other matters, to a friend C, who told the appellant that the friend C was standing next to M. The appellant instructed C to hand the mobile phone in C's hands over to M, and the appellant spoke to M, telling her she needed to 'pull the pin' and on a number of occasions told her she needed to go to court 'and sort this shit out'. The conversation ended after the maximum 10 minutes' time limit allowed by the prison authorities and was recorded on the prison phone system.

66 Several minutes later the appellant made another call to C's mobile phone and asked if M was still there. C said she was and handed the phone to her. This continued on a regular basis for all the succeeding calls.

67 Counsel for the appellant did not contest these facts when counsel was putting the plea in mitigation before Magistrate Wheeler, adding before him that the appellant was aware that M was suffering from a previously diagnosed mental illness and carrying their unborn child at the time, and he was concerned for her welfare.

68 Before me it was put, although I did not understand the submission to be strongly pressed, that by contrast the appellant should be taken to have been making the call he did to C in a way designed to conceal what he was doing. While there is some language used by his Honour suggesting this, it does not seem to me that the matter had been pressed on his Honour as an aggravating circumstance and it does not seem to me that the facts sufficiently drew this to the parties' attention at the sentencing hearing. I have put aside that aspect of the matter.

69 Magistrate Wheeler described the calls as 'pressuring', and referred to the fact they were made while the appellant was in custody for other matters and represented a prohibited communication in which he sought to have the VRO removed. While I do not disagree with that description and the relevance of those factors, I do not consider the calls to have been shown to Magistrate Wheeler to be of a threatening or intimidating character. I particularly note the fact that M repeatedly accepted the mobile phone from C after the first call.

70 As to the personal circumstances of the appellant, I have previously referred to those with the matter of time in custody to be appropriately taken into account.

71 Overall on the VRO offences, I consider that, viewing the sentences of six months each in the perspective described, they were manifestly excessive. Grossing the sentences up for 42 days for time in custody and again for the early pleas of guilty, after allowing for the matters that Magistrate Wheeler described and referred to, and accounting for the prior convictions for breaches of VROs, these sentences were, in my view, outside the range of the exercise of a sound sentencing discretion.

72 In arriving at this conclusion, I have exercised the care I should exercise in interfering with the discretion of a court, such as the Magistrates Court, which regularly hears complaints of similar offences, and is often in a better position to judge various factors, and have regard to sentences most commonly imposed. See Plenty v Bargain [1999] WASCA 67 [81] (McKechnie J). However, I note again the authorities to which I previously referred on sentencings for VRO offences.

74 As to the bail offences, the maximum penalty prescribed for this offence was a fine of $10,000 or imprisonment for 3 years, or both: Bail Act 1982 (WA) s 51(6).

75 As to the standards of sentencing customarily observed with respect to offences of this kind, no authorities were cited to me by either counsel.

76 In my view, authorities on breaches of protective bail conditions, rather than failure to answer a bail undertaking by appearing at the hearing, are those which should be considered for this purpose. I have considered three appellate authorities, Forward; Paskov v Hull [2008] WASC 163; and Moore v Hoddell [2009] WASC 380; I have also considered one of a sentencing for this offence: The State of Western Australia v Scardina (Unreported, WASCSR, INS 143 of 2010, 2 December 2010), Jenkins J. Those authorities indicate to me that sentences of 2 months for the 26 June 2010 bail offence and 4 months for the 25 September 2010 and the 19 November 2010 offences, after allowance for a plea of guilty, but before taking account of time in custody and the other matters I will reach, would not represent severe punishment for this offence.

77 As to the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, it seems to me, as it did to Magistrate Wheeler, that the first bail offence should be distinguished from the other three.

78 The first bail offence, as the prosecution described it to Magistrate Wheeler, involved the appellant on 26 June 2010, being seen by the police, to be 'in company' with Ms M before he left on foot. Counsel for the appellant, before Magistrate Wheeler, did not contest this account, but stated in terms which the prosecution for its part did not contest that the appellant had gone to his home on the night in question to find Ms M there. She refused to leave. An argument ensued, and he sought to leave himself. They were seen shouting at one another on the front lawn of the house when police saw them.

79 The second bail offence was committed at about 2.20 am on 25 September 2010, when, as the prosecutor described it to Magistrate Wheeler, the appellant went to the door of the hotel room where Ms M and her then partner were spending the night. The appellant banged on the door, yelling for Ms M, and her partner opened it, told the appellant he did not know what he was talking about, and locked the door.

80 The third bail offence, committed at 10 pm that same day, 25 September 2010, involved, as the prosecution described it to Magistrate Wheeler, the appellant sending Ms M a text message, attaching an image of Ms M naked and indicating in derogatory terms that he had sent the image to her workmates. Counsel for the appellant before Magistrate Wheeler did not contest this description.

81 The fourth and final bail offence of 19 November 2010 was, as described by the prosecution to Magistrate Wheeler, part of the description by the prosecution of the aggravated assault of the same day.

82 In my view, the last three breaches of bail could be considered, as Magistrate Wheeler appears to have done, as significantly more serious than the first. In respect of the first, Magistrate Wheeler described it as one where 'apparently she approached you', and that, 'had it been on its own, you probably wouldn't be imprisoned'. I have already indicated the position of counsel for the respondent previously, taking account of time spent in custody, that by way of concession the sentence for the first bail offence was, as I understood the submission, manifestly excessive.

83 As to the personal circumstances of the appellant, I have already referred to these, including the time in custody allowance considerations.

84 Overall, I consider that viewing the sentences for the bail offences in the perspective described, only the sentence for the first should be seen to be manifestly excessive, that is, to be outside the exercise of a sound sentencing discretion, having regard to all the matters I have described.

85 I conclude, on ground 2, that only the sentences for the VRO offences and the first bail offence have been shown to be manifestly excessive.

86 However, in an appeal like this one where there is a challenge to the total effective sentence, not just to individual sentences, I note the following from Brown v State of Western Australia [2010] WASCA 228 [42] (Mazza J; Newnes and Pullin JJA agreeing):

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. Where the totality principle comes into effect, it is of little importance how the ultimate aggregate is made up. The real issue is whether the total effective sentence offended the totality principle, not whether one or more of the individual sentences were excessive: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]; and Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40].

87 Indeed, I note the following from the authority last referred to in Brown, Giglia v State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P and Pullen JA agreeing), where his Honour said this:

There will, of course, be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error. But generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall 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, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, 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 excessive.

88 In my view, none of the sentences which I have considered have been shown to be manifestly excessive or 'heavy', except for the sentence for the aggravated assault. I consider below the relevance of that conclusion to the challenge to the total effective sentence.

89 Further, having considered ground 2 as I have, I believe I can be relatively brief in my analysis of ground 1. That is because ground 1 is a challenge resting on the first limb of the totality principle. This in turn is because the approach to a challenge to a total effective sentence on the first limb involves a review of the same matters that I have already considered: see Nguyen v State of Western Australia [2007] WASCA 114 [4] - [5] (Steytler P; McLure JA and Miller AJA agreeing):

There are two grounds of appeal. It is necessary to deal with these grounds only to the extent that they rely upon a failure to give proper effect to the totality principle, that having been the only contention that was ultimately pursued. So far as it is relevant to the appellant's contentions, that principle requires that the aggregate sentence imposed upon an offender bear a proper relationship to the overall criminality of the offending behaviour when the offences are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J and Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. Counsel for the appellant contends, in this respect, that the aggregate sentence imposed was disproportionate, having regard for the early pleas of guilty, customary sentencing standards in respect of offences of this kind and the appellant's antecedents.

When dealing with an appeal against sentence, the Court may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion differently. It will only interfere where the appellant has demonstrated that the sentencing Judge failed properly to exercise his or her discretion: Lowndes ... at 671 - 672. Error might be inferred in a case in which the result is unjust or unreasonable because it is manifestly excessive: Dinsdale ...

90 I turn then to the challenge to the total effective sentence.

91 The following statements of principle applicable to considerations of this ground were not in contest. The ground concerns what has been described as the first limb to the totality principle. That limb has been described as follows in Roffey v State of Western Australia [2007] WASCA 246 [24] (McLure JA; Steytler P and Miller AJA agreeing):

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

92 I would add that the second limb of the totality principle, that the court should not impose a 'crushing' sentence, was not in issue in this case, on the appellant's submissions.

93 It was common ground that there were no authorities which could usefully be considered on the combination of offences in this case.

94 I have already reviewed the circumstances of all of the offending, including the background of the 'volatile' relationship between the appellant and Ms M, out of which the VRO came, as well as the time spent in custody on all of the offending.

95 I have also reviewed all of the other circumstances of the appellant that appear to be material.

96 In my view, given none of the sentences I considered not to be manifestly excessive was 'heavy', in the sense I understood from Giglia [40], except for the aggravated assault, a combination of those sentences (with that exception) with at least a measure of cumulation would not offend against the first limb of the totality principle. In fact, of course there was no such measure, save in respect to the bail offences on 25 September 2010 and, as I understood it, the bail offence on 19 November 2010.

97 However, it seems to me that the matters which Magistrate Wheeler treated as particular aggravating circumstances in respect of the aggravated assault called for a measure of concurrency between the sentence for that offence and all of the other sentences. Those particular circumstances, it will be recalled, were that at the time of the offending the appellant was subject to a violence restraining order and waiting to be dealt with for the VRO offences, while being subject to protective bail conditions for which he was also waiting to be dealt. This is given the overlap between all of them by reference to the VRO and the protective bail conditions.

98 This, in my view, called for a measure of partial concurrency or a reduction in the length of the sentence for the aggravated assault offence from that in this case, so as to avoid multiple punishment: see Eves v State of Western Australia [2008] WASCA 7 [28], [29] (McLure JA; Steytler P agreeing).

99 In my view, the total effective sentence in this case was disproportionate to the overall criminality of the offending behaviour when the offences are viewed in their entirety and having regard to all the circumstances of the case, including the circumstances of the offender. Thus, I would uphold the present ground of appeal.

100 Also, it follows from this conclusion, in my view, that there is no scope for the application of the proviso in Criminal Appeals Act 2004 (WA) s 14(2) in its application to sentencing appeals: see on that application Joyce v Gee [2010] WASC 76 (Mazza J).

101 In conclusion, having upheld ground 1 it follows, in my view, without taking account of my conclusions on grounds 2 and 3, save in the way that I have indicated, that I should grant leave to appeal, allow the appeal and set aside the sentencing in this case.

102 I consider that I should also resentence the appellant. For that purpose I will hear from the parties.