Criminal law - Appeal against sentence - Breach of protective bail - Whether sentence of 6 months and 1 day's imprisonment was manifestly excessive - Breach at lower end of seriousness

1 On 13 December 2013 I allowed this appeal against sentence. The following are my reasons for doing so.

2 On 23 September 2013 the appellant entered a plea of guilty in the Perth Magistrates Court to one charge of failing to comply with a protective condition of a bail undertaking contrary to s 51(2a) of the Bail Act 1982 (WA). On 5 November 2013 the appellant was sentenced to imprisonment for 6 months and 1 day for the offence. The appellant sought leave to appeal against that sentence on the grounds that it was manifestly excessive.

3 On 4 September 2013 the appellant was charged with aggravated assault occasioning bodily harm and released on bail. The terms of the bail undertaking included conditions that the appellant not communicate or attempt to communicate with the complainant, he not enter or be within 100 metres of her residence and not to go within 20 metres of her.

4 At about 3.15 pm on Friday, 13 September 2013 the appellant was in Railway Parade in Midland. He was there with other members of his family who had gathered due to the recent death of his brother. For reasons unknown police attended and found the appellant and the complainant standing about 10 metres away from each other and involved in an argument. Police spoke to both the appellant and the complainant and then drove the appellant to an address in Midvale. The following day the police were conducting enquiries into another matter and became aware of the existence of the protective bail conditions. The appellant was then arrested, interviewed and charged with the offence.

5 It is not apparent, either from the prosecution notice or from the facts read in the Magistrates Court, which of the conditions it was alleged that the appellant had breached. In mitigation counsel who appeared for the appellant in the Magistrates Court stated that the appellant had been in the area first, attending to 'grieving ceremonies' with his family. It was said that the complainant then arrived to pay her respects. The appellant had no concerns with her doing so but he had been drinking and was not in a fit state to remove himself. There had been a verbal altercation but no physical contact.

6 The prosecution told the magistrate that the appellant had made full admissions to the offence when interviewed. In order to determine what it was the appellant had admitted I reviewed the recording of the interview. In the interview the appellant said that on 13 September 2013 he was in Midland with members of his family. He said that there were lots of people present. They had gathered due to the recent death of his brother. The complainant arrived to pay her respects. Because the appellant and the complainant had been in a relationship for many years she knew many members of his family. He accepted that she had every right to be there and that he could not ask her to leave. However, he felt obliged to stay to be with his family and to show respect for his deceased brother. He agreed that when police arrived he was arguing with the complainant. He said that others were also involved and that there was some shouting of abuse. He said that everyone had been drinking.

7 Neither the statement of facts and nor the police interview provide any basis for an allegation that the prohibition on approaching the complainant had been breached. The available information was that the complainant had approached the appellant rather than the other way around. Those circumstances alone could not sustain a conviction for breach of the protective condition in this case for reasons which are analogous to those given by Beech J in Sturt v Ball [2013] WASC 343.

8 At the hearing of the appeal the parties agreed that the only proper basis for the appellant's conviction was breach of the condition not to communicate with the complainant. It was accepted that this condition was breached because the appellant was engaged in an argument with the complainant when the police arrived. However, who initiated the argument, how long it continued and what its content was were unknown. Other than a reference by the police in the interview to the argument being heated, no other information about it is available.

HIS HONOUR: Just stand up, please, Mr Edgill. I mean, the record in relation to what appears to be domestic violence is extensive. When you were placed on protective bail conditions back in [sic] after the alleged assault on [the complainant], your obligations were clear.

ACCUSED: Yes.

HIS HONOUR: And you knew well, because you - - -

ACCUSED: Yes, but I lived in Midland.

HIS HONOUR: Yes, but you knew well you shouldn't have anything to do with this woman because you had previously just been to jail for something similar.

ACCUSED: Yes, I went to stay with my brother in Midland.

HIS HONOUR: Yes, but you were not to have anything to do with her, not to confront her, not to do anything, Mr Edgill. I accept that the actual breach is not at the higher end of the scale but it's a situation where you are on a charge of assault, bodily harm, involving this person, and you have well understood, because of a prior history of this sort of offending. The need for deterrence, in my view, is - - -

ACCUSED: Yes.

HIS HONOUR: - - - for that sort of offence is overwhelming.

I'm mindful of the fact that you have been in custody. In relation to the breach of protective bail there's six months and one day imprisonment, commencing 19 September 2013. So, I have given you what I consider a minimum. I'm forced into giving that, but in my view there should be a term of imprisonment appropriate for that sort of behaviour (ts 6, 7).

10 The interruptions by the appellant appear to have been an attempt by him to explain that he had been endeavouring to comply with the bail conditions by moving to Midvale, the complainant being resident in Yokine.

11 A claim of manifest excess depends upon establishing an implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the proper exercise of sentencing discretion.

12 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.

13 Section 51(6) of the Bail Act provides that the maximum penalty for an offence under s 51(1) or s 51(2a) is $10,000 or a term of imprisonment not exceeding 3 years or both. Whilst failure to comply with a protective bail condition attracts the same maximum penalty as other breaches of bail, a breach of protective bail conditions may justify a higher penalty due to the particular circumstances.

14 The circumstances under which a breach of bail may occur can vary significantly. It is not possible to discern a customary range of sentences imposed for such offences. In any event, a range of sentences where it can be determined is only one of a number of factors relevant to whether a sentence is manifestly excessive. Even if a range cannot be discerned other comparable cases may be useful as providing a reference point for ensuring consistency in sentencing: Sabau v The Sate of Western Australia [2010] WASCA 3, Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

15 In Hamlett v Whitney [2013] WASC 100 [22] [25] I reviewed a number of cases involving sentences imposed for breach of bail offences. Hamlett itself was a case involving a total effective sentence of 6 months and 1 day for three offences of breaching bail. One of the offences in that case was a breach of protective bail conditions which attracted a sentence of 4 months' imprisonment. That individual sentence was not challenged on the appeal. The facts of that offence in Hamlett were that at about 9.30 am in the morning the offender had entered the Centrelink offices in Geraldton and had seen the complainant talking to a member of staff. He raised his arm, pointed at the complainant and began yelling obscene and threatening language at her. The complainant moved behind a member of staff and collapsed in tears. The offender then walked towards her and continued to using threatening and abusive language. He came within five metres of the complainant. He was then instructed to leave the building. He did so while continuing to yell abuse at the complainant. A short time later he removed his shirt and attempted to reenter the building. Staff in the Centrelink office had locked the entrance doors. The offender continued to use threatening and abusive language while attempting to reenter the premises. Police were called and the offender was arrested.

16 It is apparent that the offending in Hamlett was significantly more serious than the present case. In Hamlett the offender had deliberately approached the complainant and behaved in an aggressive and highly threatening manner. He had persisted in his behaviour, even after being locked out of the Centrelink offices. In both cases there was a significant prior history of failing to comply with court orders, including bail conditions. Comparison with Hamlett indicates that the sentence in this case was too high.

17 The magistrate referred to the prior history of the appellant and the need for deterrence being 'overwhelming'. It is true that the appellant had multiple offences for failing to comply with police orders, breaching restraining orders and failing to comply with bail conditions. He had previously received sentences of imprisonment for breach of protective bail conditions. However, the circumstances of those previous offences were unknown. It does not follow that because an offender has progressed through a series of increasingly more serious penalties that any further offences must be visited with imprisonment regardless of the particular circumstances of the offence. The fact that there are prior offences does not aggravate an offence, nor is it relevant that past penalties have failed to achieve their objective: s 7(2) Sentencing Act 1995 (WA).

18 The sentence imposed needed to be proportional to the circumstances of the offence. The appellant's prior record did not make those circumstances more serious. The record was relevant to the extent that there was an absence of mitigation in respect of good character. However, a sentence should not be increased beyond what is proportionate to the offence in order to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, 467, 468, 482 483, 495. See also Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472.

19 The previous criminal record of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty that is disproportionate to the gravity of the offence. To do so would be to impose a fresh penalty for past offences: Veen [No 2] (477) (Mason CJ, Brennan, Dawson & Toohey JJ).

20 The criminal record of an offender may be relevant to show whether an offence is out of character or is an instance of continuing disobedience with the law. If the latter is the case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted: Veen [No 2] (477). However, that does not mean that a person with a history of offending is liable to receive a sentence that is more severe than the circumstances of the offence could possibly warrant. It simply means that an offender with a relevant prior record may, for the reasons referred to, receive a higher sentence within the appropriate discretionary range for an offence of that type: Bropho v Harrison [2013] WASC 250 [41].

21 A sentence of 6 months and 1 day must raise a suspicion that the sentence has been increased beyond what would otherwise have been imposed to avoid the prohibition on imposing terms of 6 months or less contained in s 86 of the Sentencing Act. Such a sentence suggests that the magistrate may have inappropriately adjusted the sentence upwards. That suspicion is reinforced in this case given the magistrate's reference to being 'forced into giving' that sentence. However, it remains necessary to consider the maximum penalty, the particular circumstances of the offending and the offender's personal circumstances to determine whether the sentence imposed was manifestly excessive.

22 In the present case the magistrate accepted that the breach was 'not at the higher end of the scale'. Having regard to the fact that the appellant did not approach the complainant, that there was no evidence as to who initiated the communication or what it involved and that there was no suggestion that the appellant had deliberately set out to breach the bail conditions, this could not be viewed as a serious example of an offence of its type.

23 A sentence of immediate imprisonment is one of last resort: s 39(2) and s 39(3) Sentencing Act. Before concluding that a sentence of imprisonment is appropriate a court must be satisfied that no other option is appropriate. The circumstances of this offence could not justify a conclusion that no sentence other than one of immediate imprisonment was appropriate. The sentence imposed was clearly manifestly excessive.

24 As I have noted in another case, the appellant was one of those intractable offenders for whom the criminal law has no easy answers. The apparent futility of imposing fines for repeated offending can cause a search for a more effective option. However, in doing so, it is important to always ensure that the penalty imposed is appropriate for the offending conduct in question: Bropho [53].

25 For the above reasons on the hearing of the appeal I made the following orders:

1. Leave to appeal on the grounds contained in the appeal notice is granted.
2. The appeal is allowed.
3. The sentence of imprisonment imposed on 5 November 2013 is set aside.
4. In lieu thereof the appellant is fined $300.

26 In resentencing the appellant I took into account that by the time that the appeal was heard he had already served a considerable portion of the sentence that was imposed, having been first remanded in custody on the charge on 19 September 2013.