DAY -v- MILLSON [2015] WASC 183 (30 April 2015)

3 The protected person is Mr Day's partner, or former partner, of eight years. He told the police that he was present there at her invitation, and that he did not believe he was doing anything wrong. There was no suggestion before the court that it was the conduct of Mr Day that led to the police being called to the house on that day. He was, however, physically present at a place where he was not permitted to be.

4 Mr Day had breached the VRO on three previous occasions: on 30 December 2014, 13 January, and 24 January 2015.

5 The court was told that on the first two of those occasions, Mr Day was intoxicated and was at the protected person's address. On the third occasion, he was standing out the front of an adjacent unit, and perhaps had been seen leaving the protected person's unit.

6 Mr Day pleaded guilty to breaching the restraining order and was sentenced on 7 March 2015. He had then been in custody since 2 March 2015.

7 It is relevant to mention earlier sentences. On 14 January 2015, Mr Day was sentenced to three community based orders for 10 months on two breaches of the VRO and one breach of protective bail conditions. On 27 January, the community based orders were cancelled and fines were imposed. The fines were comparatively low. The total fine imposed on that occasion was $500.

8 In sentencing Mr Day on 17 March 2015, the court was constrained by s 61A(5) and (6) of the Restraining Orders Act 1997 (WA) (the Act). Importantly, the question for the Magistrates Court, if it was not to impose a penalty that included imprisonment, was whether imprisonment would be clearly unjust given the circumstances of the offence and the person, and whether Mr Day was unlikely to be a threat to the safety of the person protected or the community generally. The magistrate made no express finding regarding the safety of the person protected. Her Honour was, however, satisfied that imprisonment was not clearly unjust.

9 For the purpose of sentencing, the magistrate received a verbal court report, similar to a presentence report.

10 Significantly, that report advised the court that, in his late teens and early 20s, Mr Day had been diagnosed with bipolar and personality disorder, and had spent significant periods of time in Graylands Hospital.

11 Counsel for Mr Day advised the court that he had not realised how serious the matter was, and that he had not been taking his medication. She submitted that it was unjust to trigger the term of imprisonment because of the issues raised in the report in regard to Mr Day's background, his limited criminal record, and the fact that the offences were at the lower end of the scale.

12 Counsel said that Mr Day had had difficulty in accepting that the relationship was over, but that he now accepted it. There was some brief reference by counsel to a sentence to be immediately served, but no detailed submission regarding suspension of the term of imprisonment.

13 In sentencing, the magistrate mentioned the plea of guilty and that she would give a full 25% discount in relation to the sentence despite the strength of the State's case.

14 Her Honour accepted that there was no suggestion that the police were called because of Mr Day's conduct, and she referred to the earlier occasions when he had been drinking as a different type of matter. I am satisfied that her Honour has correctly characterised the conduct and not regarded it as more serious than it was. It was, however, serious.

15 Her Honour specifically referred to the diagnosis of bipolar and personality disorder and to the difficulty that Mr Day had in gaining acceptance in the Katanning community.

16 Her Honour then referred to s 61A and proceeded from the requirement that imprisonment is appropriate unless unjust. She had regard to Mr Day's mental health, that he had not been taking his medication, that he had been taking other drugs, and also to the fact that he had been invited over. In the light of all that evidence, she found she could not conclude that it would be unjust to imprison Mr Day. Her Honour said:

You came before the court in December and you had these issues and it was discussed and you were placed on orders that were going to help you not reoffend and the court couldn't have been more clear. I remember discussing with you and saying to you that a violence restraining order when it's in place means that's it. [It] doesn't matter whether she rings you or whether she is on the side of the road and says, 'Please get in the car and come home and have dinner with me.' It makes no difference (ts 12).

17 Later, her Honour referred to Mr Day's blatant disregard of the court order, and continued advising Mr Day that the orders are significant because they are to protect. She said:

You might not think that [the protected person] needs protection ... But on a number of occasions now she sought protection. She sought it in getting the violence restraining order. She sought it each time you turned up drunk to her house and the order was made final. She has not cancelled the order ... [If] the courts don't uphold those restraining orders they're not worth the paper they're written on and that's the problem (ts 13).

Her Honour then referred to specific deterrence, and said:

[S]pecific deterrence ... that is stopping you ... in this matter is significant in my view.

18 The Act gives to the sentencing magistrate the judgment whether imprisonment would be clearly unjust. On appeal, an appellant must persuade the court that the magistrate erred in failing to decide that it would be unjust. The question is whether it was open to the magistrate at first instance to find that it was not clearly unjust.

19 The decision of the magistrate is to be made having regard to the circumstances of the offence and also to the person. The magistrate clearly had regard to the circumstances of the offence, including that there was no allegation of violence. The circumstances must, in my opinion, include the existence of a VRO and the previous breaches of it. And in this case in particular, there were repeated breaches within a relatively short period. The fact that the appellant had on previous occasions been intoxicated, but was not on this occasion, is relevant. But what is of particular concern is that he was present at the home of the protected person in circumstances where he was prohibited from being so, and where it must be accepted there had been some basis for restraints to have been imposed on him by order of the court.

20 The consent of the protected person is a relevant factor, but it is not mitigating. In any event, her Honour clearly took it into account. Reference should be made to Miller J's decision in Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27 where, in a passage frequently cited, his Honour said that 'the community must have confidence that restraining orders will be obeyed and complied with' and 'there must be significant consequences' when they are not [14].

21 The magistrate was also required to take into account the circumstances of Mr Day, and the most significant matter, perhaps, is his mental impairment. The principles relevant to sentencing an offender with mental or psychological problems falling short of insanity have been enunciated in a number of cases; see recently Krijestorac v The State of Western Australia [2010] WASCA 35 and Gok v The Queen [2010] WASCA 185. The courts have specifically referred to the possible lessening of moral culpability, and also, relevantly in this case, that specific deterrence may be more difficult to achieve where a person suffers from an impairment. In Gok, however, Mazza J said:

With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described [61].

22 The limited evidence that was available before the magistrate did not show that Mr Day's mental impairment was such that he lacked the ability to reason in the manner described by Mazza J, or that he lacked the capacity to be deterred by the prospect of imprisonment. Nor was it shown to be causative of the occasion of the offending. Mental impairment remains a relevant consideration in the course of sentencing, but the magistrate clearly had regard to it in the context of behaviour which was not an isolated breach, but showed disregard for the order of the court and for the purpose of that order; that is, the protection of the protected person. The question is whether a sentence that included imprisonment would be clearly unjust, and I am not satisfied that has been demonstrated.

23 Ground 1 is without reasonable prospects, and I refuse leave on it.

24 The second ground, however, challenges the decision not to suspend the sentence. As I understand the authorities, a suspended sentence may be imposed and still comply with s 61A because a suspended sentence of imprisonment remains a penalty that includes imprisonment: s 61A(5).

25 The magistrate did not mention suspension, and did not discuss at all whether suspension of the term of imprisonment was or was not open. There are circumstances, of course, where the failure to mention a particular option, particularly if it is an option that is clearly open on the facts, will lead the court to infer that there has been an error in the exercise of the sentencing discretion. And it is important that s 39 of the Sentencing Act 1995 (WA) requires a court to not use a sentencing option unless it is not appropriate to use any of the options listed before that option.

26 The imposition of a term of imprisonment is an option which, in the table in s 39, appears after the imposition of a term of suspended imprisonment, and is clearly a more severe sentence. On the other hand, it is entirely wrong to regard a term of suspended imprisonment as some sort of soft option. In the table in s 39, it is towards the top of the range of available penalties. And it has very serious consequences, in that the breach may result in the offender having to serve the term imposed but suspended.

27 I accept that suspended imprisonment would have both specific and general deterrent effects. It is also a penalty which cannot be imposed without the court first forming the view that imprisonment for that period is otherwise required. In those circumstances, counsel for Mr Day has submitted that the primary question before the sentencing magistrate, once she had decided that it was not unjust to imprison, was whether the term of imprisonment should be suspended. It is in those circumstances that the failure to refer expressly to it ought be considered.

28 It remains the case, however, that the court on an appeal is concerned with an appeal against the order and not the reasons. While it is possible to infer error in the sentencing process from an omission in the reasons, I must still look primarily at the order that the court made. I am not satisfied that suspension of the term of imprisonment was an option that was so clearly open in the circumstances of this case that I should interfere with the discretion of the magistrate.

29 I have set the facts out in more detail above, but of particular concern are that there were repeated breaches within a relatively short period of time, and that two of the breaches involved intoxication. Whether it is correctly described as Mr Day turning up intoxicated, or whether he got intoxicated at the premises, there were still two breaches which involved intoxication in the presence of a person who is, by law, to be protected to the extent of Mr Day not getting within 100 m of her.

30 I take into account Mr Day's assertion at the time that he was doing nothing wrong, and his assertion on the sentencing occasion that he did not realise how serious it was. It must be accepted that the circumstances of the offence are not as serious as if there had been actual violence, or intoxication, or some sort of disruption or carry-on that led to the police attending. But that does not put it at the bottom end of the scale. It was a breach which involved him being physically in the presence of the person who was to be protected by the order, when the effect and intent of these orders is entirely protective.

31 In the circumstances, such blatant disregard of the order three times within a short period of time is, in my opinion, something which the magistrate could properly find warranted an immediate term of imprisonment. The length of the term that was imposed has not been challenged. It was made in circumstances where the Act requires a term that includes imprisonment unless it is clearly unjust to impose a term, and where s 86 of the Sentencing Act precludes sentences of six months or less.

32 The term of seven months, even taking into account the fact that Mr Day had been in custody for two weeks, was not, in my view, unreasonable. The order was backdated to 2 March 2015, when he went into custody.

33 For those reasons, while I accept that it would have been preferable for the magistrate to expressly deal with the question of suspension of imprisonment, I am not satisfied ultimately that her Honour's decision was outside the sentencing discretion. Although I would grant leave with regard to ground 2, the appeal must be dismissed.