Appeal - Criminal law and procedure - Appeal by leave against 7 month sentence of suspended imprisonment for breach of a restraining order - Whether sentence manifestly excessive in view of particular factors - Whether there was inadequacy in reasons for sentence that resulted in imposition of sentence that was manifestly excessive and inappropriate in all the circumstances - Whether there was error in refusing to take into account time spent in custody that resulted in sentence that was manifestly excessive and inappropriate in all the circumstances

Criminal Appeals Act 2004 (WA), s 9

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 12, s 14

Restraining Orders Act 1997 (WA), s, 11A, s 30E, s 61

Sentencing Act 1975 (WA), s 6, s 8, s 39, s 76, s 80, s 86, s 87

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)

Brown v Roe [2004] WASCA 210

Chan (1989) 38 A Crim R 337

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

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

Dominik v Volpi [2004] WASCA 18

Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246

Forward v Bower [2007] WASC 205

Furber v The Queen [2008] WASCA 233

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

H v State of Western Australia [2006] WASCA 53

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999)

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

Moody v French [2008] WASCA 67

Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

Narkle v Hamilton [2008] WASCA 31

Nevermann (1989) 43 A Crim R 347

Pillage v Coyne [2000] WASCA 135

R v Tait and Bartley (1979) 24 ALR 473

Samuel v The State of Western Australia [2004] WASCA 154

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

Scook v The Queen [2008] WASCA 114

1 This is an appeal by leave against a sentence imposed by a magistrate. The sentence appealed against is for breach of a violence restraining order, contrary to Restraining Orders Act 1997 (WA) (RO Act) s 61(1). The grounds of appeal as they were sought to be amended are (ground 1) that the sentence was manifestly excessive given the nine particulars specified; (ground 2) that the sentencing magistrate erred in not giving reasons for imposing the sentence she did, which resulted in a sentence which was manifestly excessive and inappropriate in all the circumstances; and (ground 3) that the sentencing magistrate erred in refusing to take into account time spent in custody which resulted in imposing a sentence that was manifestly excessive and inappropriate in all the circumstances.

2 I begin these reasons by setting out the background to the imposition of the sentence appealed against. I then refer to the proceedings in this appeal, including the application for leave to amend the grounds of appeal, before turning to consider each of the amended grounds of appeal and for ground 1 each of its nine particulars. The final section of these reasons is my conclusions and the orders I would make.

3 On 15 August 2008 at the Magistrate's Court in Armadale the appellant had appeared, unrepresented, before Magistrate Lane in relation to three charges. Those charges were breach of bail (PE 34206/2008); assault occasioning bodily harm (AR 3519/2008); and aggravated burglary (AR 3520/2008). On that occasion the appellant was remanded to Graylands Hospital for a psychiatric report as to his fitness to stand trial.

4 On 27 August 2008 the appellant appeared, again unrepresented, before her Honour, both on the three charges of breach of bail, assault occasioning bodily harm and aggravated burglary, and on two further charges. Those two further charges were disorderly conduct in a public place (PE 50681/2008); and breach of a violence restraining order (PE 50680/2008). That last charge is the subject of the present appeal.

5 On that occasion the charges of assault occasioning bodily harm and aggravated burglary were put through to the District Court, and on the remaining charges the appellant was remanded in custody to 5 September 2008 to obtain legal advice. Also on that occasion it appears that it was noted during the proceedings that the breach of a violence restraining order had allegedly been committed while the appellant had been on bail for the charges so put through.

6 On 29 August 2008 at the Magistrate's Court in Perth the three charges of breach of bail, disorderly conduct in a public place and breach of a violence restraining order were brought forward for a bail application before Magistrate Lane. However, on that occasion the appellant pleaded guilty to all three charges. Her Honour proceeded on that occasion, and after hearing submissions as to sentence, to sentence the appellant on those three charges.

7 For the breach of a violence restraining order, her Honour sentenced the appellant to 7 months imprisonment, suspended for 12 months. For the offence of disorderly conduct in a public place, her Honour imposed a fine of $1,000. For the breach of bail, her Honour imposed a fine of $1,000 also, with costs of $191.50 and declared the forfeiture of the bail amount.

8 Prior to her Honour delivering her sentencing dispositions and remarks, during the course of sentencing submissions from the prosecutor and counsel for the appellant (who was also counsel for the appellant before me), there were exchanges between her Honour and the prosecutor and counsel for the appellant. I will have occasion to refer to a number of the submissions and of those exchanges.

9 Her Honour's sentencing remarks were brief. After she stated her sentencing dispositions and after describing the 'highly likely' consequence for the appellant should he commit another offence carrying a term of imprisonment during the period of suspension of the term of suspended imprisonment, she said this:

Now, what this means is I consider that any breach of a violence restraint order should be treated seriously. It should be treated seriously so that the courts do not trivialise these matters and that there is a public expectation that anybody who breaches a violence restraint order will be dealt with appropriately. In this case, had you rung, not spoken, or said very little, it would have been better, but what you said was threatening and intimidating and completely breaches the Violence Restraining Order Act by your actions. Thank you very much.

10 It was not suggested to me that, apart from the exchanges with counsel to which I have referred, and the quoted passage, there were any other remarks on sentencing made by her Honour material for my purposes.

11 By appeal notice dated 25 September 2008 the appellant applied for leave to appeal against the sentence for the breach of a violence restraining order on the ground of appeal attached to the notice.

12 On 7 October 2008 McKechnie J of this court granted leave to appeal on that ground (the original ground).

13 Before me, counsel for the appellant sought leave for the appeal to proceed on the basis of amended grounds of appeal and counsel for the respondent indicated she had no objection to the appeal so proceeding. I gave such leave and thereafter the appeal proceeded on those grounds (the amended grounds). I briefly explain why I consider that such leave was properly given.

1. The Learned Magistrate erred in imposing a suspended term of imprisonment when such sentence was manifestly excessive given

(a) circumstances of the offence

(b) plea of guilty

(c) his age

(d) the time spent in custody

(e) psychiatric report from Graylands

(f) the fines he received on charges 34206/08, 50681/08 dealt with at the same time

(g) the support offered by the family

(h) his record of convictions

(i) progress and attitude at time of sentencing

1. Her Honour erred in not giving reasons for imposing a suspended term of imprisonment or any reasons in relation to sentence, this resulted in imposing a sentence which was manifestly excessive and inappropriate in all the circumstances.
2. Her Honour erred in refusing to take into account time spent in custody which resulted in imposing a sentence which was manifestly excessive and inappropriate in all the circumstances.

15 Ground 1 of the amended grounds of appeal was an amended form of the original ground, while grounds 2 and 3 had no counterpart in the original ground.

16 Ground 1's amendments were to add to the particular matters in the original grounds references to 'the plea of guilty' and 'a psychiatric report from Graylands', while deleting from the particulars in the original grounds 'the time spent in Graylands' and 'his bi-polar condition'. I did not consider any prejudice could arise from giving leave for such amendments.

17 As to the new grounds, in my view it was also appropriate leave to amend be given. As will be apparent from my reasons below, approaching the matter as if leave had been sought only on those last two grounds, it would have been appropriate to have granted leave to appeal on them under Criminal Appeals Act 2004 (WA) s 9 approached as Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [58] - [60] (Steytler P, Wheeler and Roberts-Smith JJA) states it should be approached.

18 I turn now to consider each of the amended grounds of appeal.

19 The principles which should guide the court in determining whether a sentence of suspended imprisonment was 'manifestly excessive' did not appear to me to be in contest.

20 A convenient general statement of those principles is in R v Tait and Bartley (1979) 24 ALR 473, 476 (Fed Ct, Full Ct, Brennan, Deane and Gallop JJ) as follows:

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R (1913) 16 CLR 336-40 at 339; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 15 ALR 1-17 at 15).

21 See also House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519 - 520 (Dixon, Evatt and McTiernan JJ).

22 In respect of the matter of a sentence 'so excessive or inadequate as to manifest such an error' (Tait 476), it is accepted that such a sentence is one that falls 'outside the range of a sound exercise of sentencing discretion': Furber v The Queen [2008] WASCA 233 [46] (Murray AJA), [1] (Buss JA) and [2] (Miller JA).

23 It was common ground before me that the issue for me was whether or not a sentence of imprisonment of 7 months, whether or not suspended, for the breach of a violence restraining order was in this case 'outside the range of a sound exercise of sentencing discretion'. This goes to the first stage of what has been described as the two stage process in imposing a term of suspended imprisonment. That process is for my purposes conveniently described in Forward v Bower [2007] WASC 205. That case was one involving an appeal against sentences of imprisonment for breaches of a violence restraining order, in Forward to be immediately served. I note Forward [22] where Le Miere J refers to Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [79] and [85] (Kirby J), as follows (emphasis supplied):

A court must not impose a term of immediate imprisonment unless satisfied that it is not appropriate to impose a term of suspended imprisonment: Sentencing Act 1995 (WA) (Sentencing Act) s 39 and s 6. The decision whether or not to suspend an offender's prison term involves a two stage process. First, having considered all the alternatives, the court must determine that a sentence of imprisonment is the most appropriate sentence. Only then may the court determine whether the sentence of imprisonment imposed should be suspended: Dinsdale ... [79] (Kirby J). In Dinsdale, Kirby J observed ([85]), 'the two steps should not be elided. Unless the first is taken, the second does not arise'. In deciding whether to suspend the term of imprisonment, the court must revisit the factors which it had considered in arriving at the decision that imprisonment was the only appropriate sentence.

See also Sentencing Act 1995 (WA) s 76(2).

24 In my view that determination, that a sentence of imprisonment is the 'most appropriate sentence' or 'the only appropriate sentence', requires a determination by the court, in accordance with Sentencing Act s 6(4), that either the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires such a sentence, and that the appropriate sentence is one of 7 months.

25 In reviewing the sentencing determination the reviewing court must follow the principle set out in the frequently cited passage from Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) as follows:

Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House ...]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

26 As to the matters to be taken into account in assessing whether or not a sentence is 'manifestly excessive' as these authorities indicate that phrase should be understood, I note from Cranssen 520 the following:

The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.

27 Below I will consider, in the terms in Cranssen 520, 'the offence' and 'the circumstances of the case', by reference to the specific matters listed in Ground 1 of the amended grounds of appeal, (a) to (i).

28 However, I first consider the general approach to sentencing for the offence of breach of a violence restraining order described in a number of authorities cited to me by counsel for the respondent. I did not understand counsel for the appellant to take issue with the appropriateness of those citations for that purpose, but rather with whether or not that approach prevented me arriving at the conclusion for which counsel for the appellant contended.

29 The maximum penalty for breach of a restraining order is a fine of $6,000 or imprisonment for 2 years or both: RO Act s 61(1).

30 At the time when the maximum penalty for that offence was expressed to be, when the order had a duration of greater than 72 hours, $6,000 or imprisonment for 18 months, the significance of the RO Act was described in Pillage v Coyne [2000] WASCA 135, a case involving breaches of a violence restraining order, at [13] (Miller J) as follows:

There is no doubt that the Restraining Orders Act 1997 is social legislation of the utmost importance. I was referred, in the course of argument, to the second reading speech upon the introduction of the Restraining Orders Bill (Hansard Tuesday, 8 April 1997, p1219), where the following statements were made by the Parliamentary Secretary:

'This is a matter of particular concern as restraining order play a central role in the legal response to domestic violence by affording what is intended to be ready access to legal protection for victims. In addition, this let [sic] will introduce improved protection to children from paedophile activity.

Family or domestic violence is rightly a matter of increasing community concern. Statistics such as those reported in May 1995 by the Crime Research Centre at the University of Western Australia confirm that the incidents of domestic violence are not confined to isolated cases. The problem is very serious and very widespread and demands a multifaceted response. Elements of prevention, legal intervention by the police and courts, advocacy, counselling and health care for victims, treatment of perpetrators, provision of crisis accommodation and other support of victims are involved.'

31 See also Brown v Roe [2004] WASCA 210 [43] (Barker J), referring with approval to that passage from Pillage.

32 It will be noted that the Second Reading Speech quoted from in Pillage refers to the categories of domestic violence and paedophile activity, into which, as will shortly become apparent, the present case does not fall. Pillage itself was a case of breaches of a violence restraining order taken out after the end of a relationship between the respondent and the person protected, which order was breached by the former visiting the latter in the early hours of one morning and calling her eight times from about 8.24 pm one evening to 3.09 am the following day. One of those calls was made from her home.

33 Miller J concluded that the appeal against the decision of the sentencing magistrate, referred by him to Sentencing Act s 46, to impose no sentence for those offences, should be allowed. This was because 'substantial fines should have been imposed' [15]. Miller J imposed fines of $750 for the breach by visiting and $250 for the breach by the telephone calls.

34 A similar view to that in Pillage [13] was expressed in another case involving a violence restraining order obtained by a person who was or had been in a de facto relationship with the person against whom the order was obtained, Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999). In Kenny, however, sentences of imprisonment were involved.

35 Kenny was an appeal by the offender against sentences of immediate imprisonment for an offence of assault occasioning bodily harm and two offences of breaches of a violence restraining order. The sentence for the assault was 12 months, and the sentences for the breaches of the violence restraining order were 3 months each, ordered to be served concurrently with one another but cumulatively on the sentence for the assault. There was also at the time of sentencing a term of imprisonment which the offender was serving for a driving offence. This sentence was not appealed but was one said by the appellant to be relevant to a consideration of the total effective sentence in the case. At the time of the offences in Kenny the maximum sentence under RO Act s 61(1) was that for Pillage.

36 The appeal in Kenny was allowed in respect of the individual sentences for the breaches of the violence restraining order, in the following terms:

In relation to the breaches of the restraining order, however, I have reached the conclusion that the sentences imposed were higher than the circumstances justified, particularly having regard to the totality of the four sentences. I am, however, of the view that it was appropriate to impose short custodial sentences on top of the other sentences. It is essential for courts to ensure that their orders are not ignored. Any failure on the part of a defendant to observe a restraining order is likely to generate in the victim genuine fear of further breaches. In all the circumstances, I consider it appropriate to reduce the sentences for the breaches of the restraining order to 1 month's imprisonment in each case. These sentences were properly ordered to be served concurrently, but cumulatively upon the prior sentences, and that order should remain in force. I would allow the appeal accordingly (10, Kennedy J).

37 In addition, there have been similar views expressed in relation to sentencing for breaches of a violence restraining order in other contexts than domestic relationships or those involving children. Dominik v Volpi [2004] WASCA 18 was a case, like Kenny, involving an offence of a breach of a restraining order committed at a time when the maximum sentence under RO Act s 61(1) was that for the offences in Pillage. The violence restraining order breached in Dominik was taken out by a person living in a flat against the offender who lived in the adjoining flat. It seems that a similar order had also been taken out at the same time by that person's son. The breach was by loudly abusing the protected persons and banging on the security screens to the door and bedroom window of their flat. The magistrate who tried the case found the appellant guilty and imposed a sentence of 4 months of immediate imprisonment at a time when a court could not impose a sentence of imprisonment for a term of 3 months or less, under Sentencing Act s 86 as it then was.

38 In dismissing the appeal against the sentence of 4 months Roberts-Smith J said this:

Violence restraining orders are notoriously difficult to enforce, particularly when the parties are in physical proximity to, or otherwise have some contact with, each other. Compliance with such orders will necessarily depend to a substantial degree on the knowledge that breaches will be dealt with promptly and severely. The need for general and individual deterrence will ordinarily outweigh subjective or other mitigatory considerations. In the instant case it could not properly be said a sentence of four months immediate imprisonment was manifestly excessive [80].

39 In the case before me, the violence restraining order had been obtained by a person employed at a restaurant at which the appellant had been an employee. The order named the person obtaining the order as the protected person for the purposes of RO Act s 11A. The order prohibited the appellant from communicating or attempting to communicate with that person by whatever means.

40 At 1.30 pm on 7 July 2008 the appellant had made a telephone call to the restaurant to speak to another person there, and the protected person answered the telephone. The appellant confirmed the identity of the person answering the telephone, and then proceeded to make threats to injure, saying to that person 'I'm going to cave your head in', or words to that effect.

41 Counsel for the appellant, as I understood his submission, put to me that the present case was one to which the emphasis on deterrence in Dominik was incapable of application because of the circumstances of this case as particularised by ground 1 of the amended grounds of appeal. As I understood counsel's submissions, if I agreed that emphasis was incapable of such application, then it would have been shown that a sentence of imprisonment was outside the exercise of a sound sentencing discretion, that is, that a determination such a sentence was the most appropriate or the only appropriate disposition was outside that range.

42 As I have indicated, it was not put to me by the appellant that Pillage [13] (where fines were imposed), Kenny 10 (where sentences of immediate imprisonment were reduced in length on appeal) and Dominik [80] (where a sentence of immediate imprisonment was not disturbed) did not describe how a court should approach sentencing for breach of a violence restraining order at least in the circumstances to which they may be taken to relate. My own research has not disclosed any different approach.

43 I further understood the submissions of counsel for the appellant to be that in any event, in view of the circumstances of this case as particularised in ground 1 of the amended grounds of appeal, I should conclude that in this case any sentence of imprisonment of 6 months or more would be outside the exercise of a sound sentencing discretion. This was on the basis that a sentence of 6 months or more would not be capable of being 'appropriate' for the purposes of Sentencing Act s 76(2) read with s 86 in its present form. Sentencing Act s 86 provides that a court must not sentence an offender to a term of 6 months or more with certain exceptions, none of which apply here.

44 I took the respondent's submissions to accept that construction of s 76(2), but to dispute that it was relevant to the present case. I consider the construction to be correct and deal below with its possible relevance to this case.

45 I turn now to consider the particular matters listed for the purposes of ground 1 of the amended grounds. I consider each separately, before considering, as I understood counsel for the appellant to be seeking to have me do, their overall effect.

46 Counsel for the appellant laid emphasis on both the facts of and the context to the breach of the violence restraining order in this case. He did this so in part at least as to differentiate the present case from Dominik.

47 In this case the facts of the breach, unlike those in Dominik, involved no indication of any intention at the outset to initiate the conduct that was the breach. Nor was there any physical proximity to the protected person, who did not provide a victim impact statement and was not the complainant, and in respect of whom there was no account of any impact on him.

48 Further, there was in this case no context of any prior breach of the violence restraining order and no indication that any offence or serious misconduct had led to the making of the violence restraining order.

49 I immediately note that the last two matters do not appear to differentiate this case from Dominik. In that case there was no reference to any prior breaches of the violence restraining order other than a conviction for a breach which had been overturned on appeal. Further, there was no indication in Dominik of the circumstance that led to the making of the order other than a reference to 'animosity' between the parties.

50 RO Act s 11A on the making of violence restraining orders provides that orders may be made not only when 'an act of abuse' has been committed by a person against a person seeking to be protected and the former is likely again to commit such an act against the latter, but also when the person seeking to be protected, or the person applying for the order on behalf of that person, reasonably fears the person against whom the order is sought will commit an act of abuse against the person to be protected.

51 Further, while I accept that the history of relations between the parties may have a bearing on the seriousness of the breach before the court, not least because of the degree of concern that any breach in such a context may have caused the person to be protected, Dominik shows that a breach without such a context may be appropriately punished by a sentence of imprisonment.

52 As to the matters of the presence of an intention to initiate the conduct that constituted the breach, and physical proximity, I note that in Dominik no emphasis was laid, either by the sentencing magistrate in that case, or by Roberts-Smith J, on those matters. While I accept that those matters may well have a bearing on the seriousness of the breach, the significance of the absence of such an intention and of such proximity may be much reduced when other matters are considered. In this case, there were the matters of the appellant's persistence in the telephone call after it was clear to whom he was talking, as well the accepted tenor of what he said to that person, in the form of a physical threat. The sentencing magistrate referred to both matters in some of her exchanges with counsel for the appellant (29 August 2008, ts 9, 11). In my view, those matters make the offence in this case rather more comparable in seriousness with the offence in Dominik.

53 Further, I note from Dominik that the victim impact statement there, and the fact one of the persons protected by the order was the complainant, were both referred to in the remarks of the sentencing magistrate in that case, in a passage quoted at [78].

54 However, I also note that the sentencing magistrate's quoted remarks immediately go on as follows:

I make clear that the views of the victim are only one of the many aspects that I have to take into account. What I think is of more significance is that when Parliament introduced the Restraining Orders Act only in December last year, it did so after widespread community consultation, there having been a previous piece of legislation in operation since the 80s. The court takes the view that when parliament increased the penalty and distinguished between violence restraining orders and misconduct restraining orders, it was directing the court to take note that these matters are of real concern to members of the community.

55 The sentencing magistrate's remarks were described by Roberts-Smith J in Dominik as 'comprehensive and pertinent' [79].

56 Further, I note that the maximum penalty for offences contrary to RO Act s 61(1) was increased, with effect on 30 November 2004, subsequent to the breach in Dominik, most notably from 18 months imprisonment to 2 years imprisonment: see Forward [66].

57 I consider that the matters referred to in the last three paragraphs of these reasons indicate that the presence of a victim impact statement or other indication of concern by the person to be protected by the order may indeed strengthen the view that only a sentence of imprisonment is appropriate. However, those matters also indicate that the presence of such a statement or other indication of concern is not required for that purpose.

58 It appears to have been common ground that I should take the appellant's plea of guilty to the charge of breach of a violence restraining order as having been made at the earliest reasonable opportunity. There is some indication from the hearing of the sentencing submissions before her Honour (see 29 August 2008, ts 3) that at the hearing on 27 August 2008 the appellant had pleaded not guilty to that charge. However, at that time the appellant was unrepresented, and the appellant had been remanded in custody to obtain legal advice, which he subsequently had at the hearing on 29 August 2008, and as a result of which he pleaded guilty. In any event, I note that nothing was made before me of any earlier plea.

59 I note that during the course of exchanges between counsel for the appellant and her Honour it was put to her, and not contested by the prosecution, that the appellant was 'contrite and ... remorseful' (29 August 2008, ts 14).

60 I also note that her Honour did not herself refer to the plea of guilty during the course of sentencing submissions or in her brief sentencing remarks. Later in these reasons I will consider separately the relevance of those features of the record of the proceedings before her Honour.

61 It appears not to have been in contest before me that the fact of a plea of guilty and how early in the proceedings it was made are relevant to determining whether or not a sentencing disposition of imprisonment is appropriate, and not simply to the length of the term of imprisonment. I consider so much is evident from Sentencing Act s 8(1) and (2), as follow:

(1) Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

(2) A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

62 Of course, it is only in the 'most exceptional of cases' that the court would not 'reduce a sentence on account of a plea of guilty': Moody v French [2008] WASCA 67 [35] (Steytler P, Wheeler, McLure and Buss JJA). However, in my view, unlike in the case of determining not to reduce the length of any sentence of imprisonment, it would not require a most exceptional case before a court could determine under Sentencing Act s 6(4) that, notwithstanding an early plea of guilty, the imposition of a sentence of imprisonment was appropriate. It was not put to me Moody or any other authority was to the contrary. I consider that Forward and Kenny support my view, as will shortly become apparent.

63 There was no plea of guilty in Dominik. However, in both Forward and Kenny there were such pleas, the presence of which formed part of certain of the grounds of appeal in those cases.

64 Forward was an appeal against an aggregate sentence of 30 months imprisonment imposed by a magistrate in respect of two offences of aggravated assault occasioning bodily harm, one offence of burglary, three offences of breach of a violence restraining order and one offence of breach of protective bail conditions. The sentences, of immediate imprisonment, for the three offences of breach of violence restraining order were, for one, 1 month concurrent; for another, 7 months concurrent; and for the third, 7 months concurrent with one of the offences of aggravated assault occasioning bodily harm and with the offence of breach of protective bail conditions, but cumulative on the sentences for other offences. The offender had entered 'early pleas of guilty' and shown 'co-operation and remorse' [39] (Le Miere J).

65 The grounds of appeal in Forward included a ground 2, that (as described in [47]) the magistrate had erred in imposing

a total sentence upon the appellant that was manifestly excessive and imposing individual sentences (except in relation to the first violence restraining order) that were manifestly excessive taking into account six specific matters.

66 One of the 'six matters' was the 'early pleas of guilty, co-operation and remorse' [59].

67 Le Miere J upheld the appeal, but only (so far as the breaches of a violence restraining order were concerned) so as to make the sentence for the breach that had been cumulative on the sentences for certain of the other offences concurrent with all of the other sentences. None of the individual sentences for the breaches of a violence restraining order was disturbed.

68 Kenny was an appeal against sentences for an offence of assault and two offences of breach of a violence restraining order. In respect of the breaches of a violence restraining order, the offender had been sentenced to immediate imprisonment for 3 months in each case.

69 One of the grounds of appeal in Kenny was the sentencing magistrate's failure to take account at all or sufficiently of the appellant's plea of guilty at the earliest opportunity. The grounds of appeal also included that the sentencing magistrate erred in gaoling the appellant in respect of the charges of breaching a violence restraining order.

70 Kennedy J upheld the appeal and resentenced the appellant in respect of the breaches of a violence restraining order to immediate imprisonment for 1 month in each case.

71 I should note that in Forward the circumstances of the two offences of breach of a violence restraining order for which the offender received sentences of imprisonment for 7 months were more serious than those of the offences in this case. One of those two offences of breach of a violence restraining order in Forward involved the offender approaching the person to be protected on a dance floor at a hotel. He had been in a de facto relationship with that person. He had grabbed her arm, led her from the dance floor, spoken to her and hit her on a cheek causing blood to spill on to her hand and clothing, at which point he left the hotel. The other of those two offences of breach involved the offender just over 1 month later approaching the same person, again at a hotel. He had placed an arm around her chest, said he loved her and attempted to hug her. He was then persuaded by friends of that person to leave the hotel. However, shortly afterwards he re-entered the hotel, ran at the person, grabbed her around the throat and forced her to the ground, causing her to hit her head and bruise her elbow, at which point he left the hotel.

72 I have also noted that the offence of breach of a violence restraining order in Forward for which the offender received a sentence of imprisonment of 1 month involved the offender twice sending SMS messages to the person to be protected and leaving 'answer phone' messages on her mobile phone. This offence occurred one week before the first of the two offences of breach of a violence restraining order for which the offender received sentences of imprisonment of 7 months each. The sentencing magistrate described the offence in question as a 'fairly innocuous breach' [13]. However, I note that this was the 'first breach of a violence restraining order' referred to in Forward [47], the sentence for which was not appealed against as manifestly excessive.

73 I have also noted that in Forward there was a victim impact statement from the person to be protected who was the complainant in the proceedings appealed from.

74 At the same time I note that the breaches of a violence restraining order in Kenny for which the offender was re-sentenced were also of what appeared to be an innocuous character. They were described as follows (3, 5):

The second complaint charged him, being a person bound by a violence restraining order, of having breached the order by leaving a letter and a music cassette tape for [the person to be protected] at a place where he knew she would find it, contrary to s61(1) of the Restraining Orders Act 1997. The third complaint was similar to the second complaint, charging the appellant with having further breached the violence restraining order by mailing a letter to [the home address of the person to be protected].

...

There was no suggestion that either of the appellant's letters contained any threats or indeed any unpleasant remarks. If anything, they appear to have been directed to a possible reconciliation between the parties. The second letter was written at a time when the appellant was in gaol.

75 In my view, Forward and Kenny illustrate that a plea of guilty, including an early plea of guilty, does not prevent a court concluding that only a sentence of imprisonment in all the circumstances is appropriate, for a range of types of breach of a violence restraining order. In my view among the relevant circumstances are the offender's criminal history, which I consider below.

76 At the time of the breach of the violence restraining order in this case, the appellant was 21. The corresponding age of the offender in Forward was 58; however, the corresponding age of the offender in Kenny is not apparent from the report of the case to which I have access. There are indications in Dominik that the offender was significantly older than the appellant in this case, in the remarks of the sentencing magistrate in Dominik [78] that the offender 'was a migrant to this country some years ago' whose marriage had broken down 'in the 80s', where the breach of a violence restraining order had occurred on 28 August 1998.

77 The age of the appellant is undoubtedly capable of being a mitigatory factor. However, it is my view that, like a plea of guilty, it does not prevent a court concluding that in all the circumstances only a sentence of imprisonment is appropriate. In my view among the relevant circumstances are the offender's criminal history, which I consider below.

78 It was common ground that the appellant had spent eight days in custody for the present offence, ending on the day of sentencing, 29 August 2008. Although there are indications the appellant spent time in custody in relation to the charges of other offences for which he appeared before Magistrate Lane, the duration of the periods concerned were not made clear to me and no reliance upon them appears to have been made by counsel for the appellant before the sentencing magistrate or before me.

79 In the course of sentencing submissions to her the sentencing magistrate, in an exchange with counsel for the appellant, indicated that 'any sentence can be backdated to that date' (29 August 2008, ts 11), by which I understand her to have meant backdating to the commencement of the eight day period. However, her Honour made no mention of any such backdating in her sentencing remarks, which would appear to be appropriate so far as her sentencing was concerned, as she suspended the term of imprisonment she imposed. The backdating allowed for in Sentencing Act s 87(d) (on which see Narkle v Hamilton [2008] WASCA 31 [31] (Steytler P, McLure and Buss JJA)) would appear not to be capable of application to a sentencing to a suspended term of imprisonment. I should add that it is not clear to me that a court, dealing under Sentencing Act s 80 with a person who re-offended while that person was subject to a suspended sentence of imprisonment, could utilise s 87.

80 At the same time, her Honour did not appear to reduce the term she suspended for time spent in custody, which would appear to have been open to her in the exercise of her general discretion to set the length of any term of imprisonment (see on that discretion Narkle [31]). The conclusion that she did not reduce the term on that account is strengthened by the remark she made immediately preceding the reference to backdating I quoted, that 'in terms of any time spent in custody ..., it is not taken into account' (29 August 2008, ts 11).

81 That remark also in my view tends to indicate her Honour did not consider any time spent in custody on the present offence for its bearing on whether or not a sentence of imprisonment was appropriate.

82 There is no indication in Dominik of a consideration of any time spent in custody on the offence of breach of a violence restraining order in that case in relation to the sentence for it. In Kenny it would appear the question did not arise as the offender was in custody on other charges.

83 However, in Forward one of the specific matters relevant to ground 2, concerning, among other things, manifestly excessive individual sentences, was 44 days of time spent in custody, although a substantial portion of that time represented time spent in custody following the offender's breach of bail conditions requiring him to stay away from the complainant: see [50]. In Forward, as in this case, the sentencing magistrate, after substantial references by counsel for the offender to time spent in custody, made 'no express reference to the previous time in custody spent by the appellant' [50]. After noting that the 'allowance', if any, for time spent in custody was a matter for the discretion of the sentencing magistrate [50], Le Miere J concluded 'it had not been demonstrated that any of the other sentences [than the sentence of 18 months for one of the offences of aggravated assault occasioning bodily harm] imposed were manifestly excessive', while noting that there had been no 'specific submissions' as to those sentences [73].

84 I note that Le Miere J had earlier considered time spent in custody in relation to ground 1 of the grounds of appeal in that case. Ground 1 was that the sentencing magistrate erred in jailing the offender 'and alternatively not imposing either suspended sentences or an ISO or a combination of both', taking into account, among other things, 'the time already spent in custody' by the offender. However, it appears the argument for the offender in relation to ground 1 was in relation to the length of the total effective term of immediate imprisonment in that case (see [37]). Le Miere J noted in respect of this aspect of ground 1 that Sentencing Act s 87 'does not expressly provide for the court to take into account time in custody in determining whether or not to suspend a term of imprisonment' [37].

85 However, I do not consider his Honour meant by this last remark to indicate that the time spent in custody could not, by reason of Sentencing Act s 87, be taken into account in relation to whether or not a term of imprisonment was appropriate. I consider any other view would be inconsistent with the view of s 87 taken in Narkle, that it was 'facilitative' [31], and the confirmation in that case that time spent in custody may be relevant to matters of personal deterrence (see [39]). I consider any other view than that s 87 does not prevent time spent in custody being taken into account in relation to whether or a term of imprisonment was appropriate would be inconsistent with what I understand to be sentencing practice in this state.

86 In my view the time spent in custody for an offence for which an offender is being sentenced may in suitable cases be taken into account in relation to whether or not a sentence of imprisonment for that offence is appropriate. However, in this case there was no material before her Honour to indicate the effect of that time, or any other spent in custody in relation to the other charges he faced, on the appellant. Further, the time relied upon by counsel for the appellant was very short. In those circumstances I do not consider that time could have any significant bearing on whether or not a sentence of imprisonment was the most appropriate or the only appropriate sentencing disposition. I return below to its possible bearing on the length of any such sentence.

Ground 1(e): psychiatric report from Graylands

87 This report dated 20 August 2008 was in response to her Honour's remand of the appellant to Graylands for a psychiatric report on the appellant's fitness to stand trial. This remand appears to have been pursuant to Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act) s 12 and s 14. The report included the conclusion that the appellant was fit to stand trial.

88 Counsel for the appellant emphasised that the report from a psychiatric registrar and a consultant psychiatrist, showed that the appellant needed assistance with his polysubstance and alcohol abuse problems. The report indicated the appellant's polysubstance abuse had contributed to what it identified as a mental and behavioural disorder. This indication should be viewed, counsel for the appellant said, against the fact the appellant had not previously been the subject of any court orders calling for his supervision in the community. This was unlike the position of the offender in Dominik (as to which I note [78]), where there was a history of a failure by him to gain any benefit from such orders. Indeed I note in the last respect the observation in that case [79] that there was a recommendation of the author of the pre-sentence report there that the offender be given a deterrent penalty. Roberts-Smith J stated that he understood that recommendation as intended to reflect the author's assessment of that history of such failure, and it was 'rare indeed' for a 'Community Corrections Officer to recommend an offender be given a deterrent penalty' [79]. In this case, the report was not cast as a presentence report, and it described options for dealing with the appellant, depending on whether a custodial or a non-custodial disposition was chosen.

89 In those circumstances, counsel for the appellant put to me, a sentencing disposition involving supervision in the community was clearly called for.

90 However, I have noted that the report refers to the appellant having been seen by 'numerous doctors over the years'; and the appellant was said to have been 'inconsistent with the treatment and follow-up' (report of 20 August 2008, page 4). He had shown a 'lack of genuine insight into his problems and lack of motivation to address his problems', because of which he 'remains at high risk of relapsing into polysubstance/alchohol abuse as well as non-compliance with treatment and follow-up' (page 4). It was not put to me that there were any clear indications in the report as to the extent of the contributions, if any, that those problems had made to the appellant's breach of the violence restraining order, the presence of which would of course have to be weighed with any indications as to the prospects for successful treatment (see Forward [56], [57]). Nor was it put to me that there were any clear indications in the report that its authors had concluded a significant difference in respect of compliance with treatment of those problems and follow-up might be made by court ordered supervision in the community. Nor was I able to find any such indications in the report in either respect.

91 It is true there were indications in exchanges between counsel for the appellant and the sentencing magistrate during the sentencing submissions (29 August 2008, ts 14, 15) that the appellant had had a change of attitude for the better, was on medication and had an appointment with a psychiatrist. That appointment appears to be that referred to in the report of 20 August 2008 as 'hopefully ... a turning point for him' (4).

92 However, there were also indications at the hearing of 29 August 2008, from the appellant's mother when she was asked about the matter by the sentencing magistrate, that there were continuing difficulties that were being experienced handling the appellant (29 August 2008, ts 14 - 15).

93 It seems to me that, weighing all of these matters in respect of the report of 20 August 2008, the report even when viewed in the context of no prior orders for supervision of the appellant in the community, does not tell strongly against a determination in this case that a sentence of imprisonment was the most appropriate or only appropriate sentence.

94 Counsel for the appellant relied upon the fines for the offences of disorderly conduct in a public place and breach of bail as relevant because of the totality principle.

95 There is clear authority that the penalties by way of fines imposed together with a sentence or sentences of imprisonment for other offences should be weighed in the application of the totality principle: see Furber [73] (Murray AJA), [1] (Buss JA) and [2] (Miller JA) agreeing. The principle as I understand it is to be applied at the end of the sentencing process, to those sentences that would otherwise be imposed, here two sets of fines and a sentence of imprisonment of 7 months, suspended for 12 months. It seems to me that such an application might cause the court to revisit its determination that a sentence of imprisonment was the only appropriate disposition.

96 I note that in Kenny the application of the totality principle by reference to sentences of imprisonment on all of the offences in that case, including one the offender was already serving, 'particularly' led Kennedy J to reduce the sentences for the breaches of a violence restraining order as he did (10).

97 I also note that in Forward the application of the totality principle resulted not in any change to the individual sentences for the breaches of a restraining order but the manner of their combination with other sentences.

98 However, it was not made clear to me that either limb of the totality principle made a sentence of imprisonment inappropriate. The appellant has not shown to me that the aggregate sentences including the fines were either disproportionate to the total criminality involved, while taking account of all the circumstances in this case; or that the aggregate sentences were crushing, as that term is understood for the purposes of the totality principle: see Furber [70], [72]. I note in this regard that, while I had the statement made by the prosecutor as to the circumstances of the offence of disorderly behaviour in a public place (29 August 2008, ts 6), there was no similar statement in respect of the offence of breach of bail.

Ground 1(g): support offered by the family of the appellant

99 Counsel for the appellant here referred me to the indications before her Honour of the support for the appellant from his family in terms of their standing by him and the resources for his treatment they had committed. I note that there were no equivalent circumstances evident in Dominik, Forward or Kenny.

100 However, it seems to me that the indications of support needed to be weighed with the matters in the history of the appellant's past treatment and follow-up to which I have referred. It is not apparent to me that so weighed those indications told strongly against a conclusion that a sentence of imprisonment was the most appropriate or only appropriate sentence.

Ground 1(h): the appellant's record of convictions

101 Counsel for the appellant here referred to the fact this was the appellant's first breach of a violence restraining order while accepting there was a previous breach of a police order, contrary to RO Act s 61(2a). Counsel also put to me there was no violence in the appellant's criminal record apart from an assault on a police officer, which had resulted in a $600 fine. Counsel again referred to the absence from the appellant's history of dealings with the criminal justice system of any order for community supervisions.

102 The appellant's record of convictions goes of course not to the seriousness of the offending but to the weight to be given to the mitigatory matters that might otherwise be put for him: see Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 [71] (Roberts-Smith J).

103 The appellant's criminal record was in my view a bad one. It included three drug related offences for which he had received sentences of imprisonment in 2005, including one of 18 months. While all of the other offences, including traffic offences, were ones for which he had received fines (leaving aside a demerits point licence suspension), those other offences included ones not only of disorderly behaviour but also of assaulting and obstructing public officers, as recently as April 2007, as well as the breach of a police order. It seems to me the offences of assaulting and obstructing public officers and breach of a police order, while not apparently involving any violence (at least on their penalties), engage similar concerns to those engaged by a breach of a violence restraining order. Those concerns are about disobedience to lawful authority.

104 Further, I note that the offence of breach of a police order under RO Act s 61(2a) had occurred on 10 April 2008, just under three months before the breach of the violence restraining order on 7 July 2008. While it is true, as counsel for the appellant put to me, that police orders are issued by a police officer, and not by a court, they must, like a violence restraining order, be served on the person to be bound; and a police officer must explain to that person, among other things, the police order's duration, terms and effect, as well as the consequences of contravention of the order: RO Act s 30E(3). The maximum penalty for breach of a police order is the same as for breach of a violence restraining order, a fine of $6,000 or imprisonment for 2 years or both: s 61(2a).

105 The appellant's record of convictions appears not to have involved the element of violence in the record of the offender in Dominik, which included an assault occasioning bodily harm.

106 Nor was there a history of failure of orders for supervision in the community under which the court might draw a line, to which the sentencing magistrate referred in that case.

107 Further, the appellant's record was not as bad as that in Kenny. There, the offender had 'a number of convictions for assault' and the sentencing magistrate had 'observed' in respect of the breaches of the violence restraining order that the offender's prior driving record, of 13 convictions for driving without a licence, 'suggested he had a clear indifference to the orders made by the courts' (7).

108 However, I consider that the appellant's record of convictions was such that it could not be said the difference between the appellant's record and the offender's record in Dominik would prevent a conclusion being reached that the penalty in this case could most appropriately or only be a sentence of imprisonment. In this regard I also note that in Forward the offender had no prior criminal record, apart from a conviction for a drink driving offence.

Ground 1(i): progress and attitude at time of sentencing

109 Counsel for the appellant relied on the fact that at the time of sentencing the appellant had agreed, after some previous resistance, to accept legal advice, and he intended to meet the medical appointment to which I previously referred.

110 I accept that these are matters which have no counterparts in Dominik, Forward or Kenny. However, in my view they needed to be weighed with the matters I addressed in relation to the psychiatrist's report of 20 August 2008. So weighed, in my view they did not tell strongly against a determination in this case that a sentence of imprisonment was the most appropriate or only appropriate sentence.

Ground 1: whether in all of the circumstances imprisonment was the only or most appropriate sentence

111 To this point, I have been reviewing the particular matters listed in ground 1 of the amended grounds individually. I need now to consider their overall effect.

112 In so doing, I must bear in mind, from Lowndes [15], the principle that I may not substitute my own opinion for that of the sentencing magistrate merely because I would have exercised my discretion in a manner different to the sentencing magistrate.

113 In considering the overall effect of the particular matters listed in ground 1, I have considered, as I previously indicated I would, whether a sentence of imprisonment of 7 months, being a sentence of 6 months or more, would be outside the range of a sound exercise of sentencing discretion because any sentence of imprisonment that might otherwise be appropriate could only be of 6 months or less: see Sentencing Act s 76(2) read with s 86.

114 The matter should be approached, it seems to me, as stated in Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ) as follows:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: see Morse (1979) 23 SASR 98.

115 This view was adopted in evaluating a ground of appeal against a sentence as manifestly excessive in Scook v The Queen [2008] WASCA 114 [39] (McLure JA), [56] (Buss JA) and [66] (Miller JA).

116 Further, I note that the only authorities cited to me as indicating the standards of sentencing customarily observed with respect to this offence were Pillage, Kenny, Dominik and Forward. In considering those authorities, I must allow for the increase in the maximum penalty for the offence, from that applicable for the purposes of Pillage, Kenny and Dominik, to that applicable for the purposes of Forward.

117 In my view, the offence in this case was significantly more serious than the innocuous contacts by telephone in Forward. With the circumstances of the offender in that case those contacts led to sentences of 1 month. See also the sentences of 1 month imposed on appeal in Kenny, also for innocuous contacts, when as I have indicated the maximum sentence was lower than for the offences in Forward.

118 At the same time, however, this offence was not as serious as the offences in Forward involving physical violence to the person to be protected the sentences of 7 months for which were upheld on appeal (where the maximum sentence was as for this case and there were pleas of guilty, but the appellant was older and had no significant criminal record). The offence here was rather more comparable, as I have indicated, with the offence of banging on doors and windows of the neighbour who was the person to be protected the sentence of 4 months for which was not disturbed in Dominik (where the maximum sentence was that as for Kenny, but where, unlike that case and this one, there was no plea of guilty and the offender was older and his criminal record included an element of violence).

119 In my view, after account is also taken of the personal circumstances of the appellant, including his plea of guilty and his signs of contrition and remorse, allowing for his criminal record as Griekspoor indicates, it has been shown the sentence of 7 months of imprisonment in this case, being one of 6 months or more, was manifestly excessive.

121 I have already set out the reasons of the sentencing magistrate for her sentencing dispositions.

122 It was not in contest before me that the circumstances in which the inadequacy of reasons for sentencing determinations may amount to appealable error are as described in Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, [29] (Steytler, Templeman and Simmonds JJ), referring to Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, as follows:

Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444.

123 Nor was it in contest that the only branch of the principle there described relevant here is that of inadequacy 'such as to give rise to a miscarriage of justice'.

124 In considering whether or not reasons are inadequate counsel for the respondent referred me to Nevermann (1989) 43 A Crim R 347, 350 (Malcolm CJ) and Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA).

125 I accept that Nevermann 350 is authority for the view that, particularly in a court like the Magistrates Court, and notwithstanding imprisonment is a sentence of last resort as indicated by Sentencing Act s 6(4), it is not 'necessary in each case to name all the possible alternatives and the reasons for rejecting them', it being sufficient

if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate.

126 Further, Duong [42], referring to Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998) and Samuel v The State of Western Australia [2004] WASCA 154, is authority in respect of Sentencing Act s 39 that

... a sentencing judge is not in every case required to mechanically work through each of the options set out in s 39(2): see Bessell ... at 6 - 7; Samuel (at [31] - [32]). There are many cases where a serious offence has been committed and where sentence of imprisonment will be imposed without any reference to some of the other sentencing options listed in s 39(2)(a) - (f).

127 In this case I consider her Honour's reasons indicate she considered the offence was a serious one for which she felt it was necessary to impose a sentence of imprisonment without reference to any of the other sentencing options in Sentencing Act s 39, or indeed a fine. The latter sentencing option appears from the transcript of the sentencing submissions to have been the only other sentencing option than imprisonment to have been put by counsel for the appellant to her Honour.

128 In view of these matters I do not consider there was an inadequacy in her Honour's reasons having to do with a failure to expressly address the sentencing options other than imprisonment.

129 However, the written submissions of counsel for the appellant referred me, in connection with this ground of appeal, to his submissions in relation to ground 1. I understood this reference to be in particular to the failure of her Honour in her reasons for sentence to address the particular matters listed under ground 1. I particularly note in that regard, as counsel for the respondent's written submissions also appeared to me to do, that her Honour's reasons for sentence do not indicate what consideration if any she gave to reduction of the sentence on account of the appellant's plea of guilty or the appellant's time in custody either at all or in order to determine, in view of Sentencing Act s 86, whether or not a sentence of imprisonment was appropriate. In the sentencing hearing before her she was addressed by counsel for the appellant on a number of occasions on time in custody, although not on the plea of guilty, except perhaps for his reference to the appellant's recent change of attitude and his being 'contrite' and 'remorseful' (29 August 2008, ts 14).

130 I have already indicated in relation to ground 1 of the amended grounds that the transcript of the exchanges between her Honour and counsel for the appellant during sentencing submissions appears to me to indicate her Honour considered she should take no account of the time spent in custody in relation to the breach of the violence restraining order. Whether or not her failure in her sentencing remarks to expressly address the matter of the exercise of her undoubted discretion in that regard (see Forward [49]) was an inadequacy of her reasons for sentence, the possibility for a reduction of sentence because of that time in custody may be set aside, in my view. That is because of that time's very short duration.

131 The early plea of guilty in the circumstances of this case is a different matter. Such a plea attracts a discount in the term of imprisonment in the range of 20% - 35%: Moody [37]. However, a failure to refer to the effect on sentence of a plea of guilty in accordance with Sentencing Act s 8(4) will not in certain circumstances be a reason for overturning the sentence as explained in the authority cited to me in this regard by the respondent, H v State of Western Australia [2006] WASCA 53 [10] (Steytler P). I consider that explanation in H to state the law in this respect although in certain other respects his Honour's view of the effect of s 8(4) should not be taken to state the law since Moody.

132 That explanation in H [10] is as follows:

However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea: Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

133 In this case, for the reasons given in relation to ground 1, it is not obvious to me, when account is taken of the authorities cited to me in relation to sentencing for this offence, and particularly Forward, a reduction has in fact been made on account of the plea. For the same reasons, I am not of the opinion that after making an appropriate reduction on account of the plea, no different sentence should, in the light of other circumstances, have been imposed.

134 It follows I would uphold the present ground of appeal.

Ground 3: refusal to take into account time spent in custody resulting in sentence which was manifestly excessive and inappropriate in all the circumstances

135 This ground appears to overlap with ground 1. I have previously referred to the refusal, in relation both to ground 1 and to ground 2.

136 For the reasons given in relation to those grounds, I do not consider the present ground is made out.

137 I have concluded that grounds 1 and 2 have been made out. Her Honour's sentencing determination should be set aside.

138 In my view, this is a case where, subject to the views of the parties, I am in a position to undertake a resentencing of the appellant, subject to the production of a presentence report and sentencing submissions from the parties.

139 I will hear from the parties as to the orders I should make.