Criminal law - Sentence - Activation of suspended sentence - Whether trial judge should have exercised discretion not to activate suspended term - Principles to be applied

Sentencing Act 1995 (WA), s 80(1), s 80(5), s 89(1)

Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364

Hutchins v The State of Western Australia [2006] WASCA 258

Nguyen v The State of Western Australia [2009] WASCA 8

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Trew v The State of Western Australia [2004] WASCA 155

3 MILLER JA: The appellant was charged on indictment in the District Court at Bunbury with the offence of grievous bodily harm. It was alleged that, on or about 19 February 2006, at Collie, he unlawfully did grievous bodily harm to William John Hammond.

4 The appellant was convicted of this charge after trial. He was dealt with in the District Court at Bunbury by Bowden DCJ on 15 August 2007. He was sentenced to imprisonment for a period of 18 months, but the sentence was suspended for a period of 2 years. In addition, a lifelong violence restraining order was made under the provisions of the Restraining Orders Act 1997 (WA) (s 63A). This was because the appellant was convicted of a violent personal offence within the meaning of the definition of that term in s 63A(5) of the Restraining Orders Act 1997.

5 The violence restraining order was for the benefit of Mr Hammond and it precluded the appellant from communicating, or attempting to communicate, by any means whatsoever with him. In addition, the appellant was ordered not to enter any premises where Mr Hammond lived or worked, or to be within 25 metres of the nearest external boundary of such premises, or to approach within 25 metres of Mr Hammond.

6 When sentenced by Bowden DCJ, the appellant was warned of the consequences of committing any further offence within the 2-year period for which the term of imprisonment was suspended. His Honour said:

Now, Mr Brown, it is very important that you understand what that sentence is. That means if you commit any further offence within the next two years and that further offence carries a period of imprisonment as a statutory penalty, then you have breached the suspended sentence.

...

The judge that was to sentence you would in fact have my remarks and he would be aware of how close you were to a period of imprisonment to be served immediately being imposed upon you. The law then provides that really in almost all circumstances unless there are exceptional reasons you would then be required to serve the period of imprisonment. So do you understand the position?

7 After imposing the violence restraining order, Bowden DCJ added:

If you breach this order, you may be arrested and on conviction will face a penalty of up to $6000 or imprisonment for two years or both.

8 On 10 November 2008, the appellant was brought before Yeats DCJ in the District Court at Bunbury and was alleged to have been convicted of two counts of breaching a violence restraining order. Upon his admission to those convictions, he was deemed to have breached the suspended sentence of imprisonment imposed by Bowden DCJ and to have become liable to be sentenced for the offence in respect of which the original order was made. Pursuant to the provisions of s 80(1)(a) of the Sentencing Act 1995 (WA), Yeats DCJ ordered that the appellant serve the term of imprisonment which had been suspended by Bowden DCJ.

9 The appellant seeks leave to appeal against the sentence imposed by Yeats DCJ. On 9 February 2009, it was ordered that the application for leave to appeal should be heard together with the appeal.

10 There is one ground of appeal and that is that Yeats DCJ erred in law in determining that it would not be unjust, in view of the circumstances that had arisen since the suspended term of imprisonment was imposed, to order the appellant to serve the period of imprisonment that had been suspended. It is contended that Yeats DCJ failed to give any, or any proper, consideration to the circumstances of the offending behaviour during the period of suspension and that her Honour took into account irrelevant considerations in deciding that the suspended term should be activated.

11 Particulars annexed to the ground of appeal are in the following terms:

... Her Honour:-

1.2 Found that the offending behaviour was such that the suspended prison term being activated was the only appropriate disposition when in all the circumstances given the nature and extent of the offending behaviour, Her Honour should have exercised her discretion not to activate the suspended term.

1.3 Found that the victim of the breach of the Restraining Order would have been intimidated by the Appellant's presence at the hotel (the victim's place of work) where the victim was employed when there was no or no sufficient evidence before Her Honour that any behaviour by the Appellant caused the victim to be intimidated or fearful by reason of the Appellant's presence at the victim's work place.

12 The offence of grievous bodily harm arose out of an altercation between the appellant and Mr Hammond in relation to the ownership of some alcohol. On the day of the offence, the appellant and a group of friends, including Mr Hammond, went to a race meeting in Bunbury. They returned late in the day to Collie. There had been considerable drinking both before and at the races, and it continued after the return to Collie. Eventually, the group assembled at the appellant's home in Collie and there a dispute arose between the appellant and Mr Hammond, when Mr Hammond took some alcohol which the appellant considered to be his. There was an assertion by the appellant that a stubby had been thrown at him by Mr Hammond, and Bowden DCJ sentenced the appellant on the basis that this had occurred. However, he concluded that as a result of its verdict, the jury had accepted a version of events given by the witness Daniel Sochacki; namely, that Mr Hammond had been observed virtually motionless on the ground with the appellant positioned on top of him and delivering at least two blows to Mr Hammond.

13 Mr Hammond sustained very severe injuries. They were facial injuries with right-sided bruising and a large haemorrhage to the lateral aspect of the right eye. Mr Hammond suffered a 'blow out fracture' to the right eye and required treatment by a plastic surgeon. Despite that treatment, he was left with double vision in the right eye and it was a permanent disability. His condition was also exacerbated by what was described as a 'sunken eye'.

14 Bowden DCJ said that the injuries were clearly classified as grievous bodily harm and that they were serious injuries which had been occasioned by the appellant.

15 The appellant's personal circumstances were referred to. He had no record of convictions and was 32 years of age. He was in full-time employment and in a relationship, supporting a young child. His behaviour was out of character. Bowden DCJ accepted that, had it not been for the 'massive consumption of alcohol' that had taken place on the day of the offence, the incident would not have occurred.

16 Bowden DCJ considered that deterrence was an important aspect of sentencing, but thought that rehabilitation of the appellant was also a significant factor. His Honour pointed out that persons convicted of grievous bodily harm were regularly sentenced to periods of imprisonment to be served immediately. He imposed a sentence of 18 months' imprisonment, but ordered that it be suspended for a period of 2 years. The reasons for suspension were as follows:

... I believe that in all the circumstances of this offence, in particular because of your age, the fact that you are in full-time employment, that you have family responsibilities and significantly that you have no prior criminal convictions, that a suspended sentence should be imposed.

17 The breach of the suspended sentence involved two breaches of the violence restraining order.

18 On Wednesday, 26 March 2008 (which was approximately 7 months after the making of the violence restraining order), the appellant went to the Victoria Hotel in Collie. That was the place of employment of Mr Hammond. Mr Hammond was working in the hotel, serving behind the bar. The appellant entered the hotel and walked past Mr Hammond to the other end of the bar. He did not approach or speak to Mr Hammond. Mr Hammond completed his shift at the hotel and left at 8 pm.

19 At about 7 pm on 9 April 2008, the appellant breached the violence restraining order for a second time. He again entered the Victoria Hotel. Mr Hammond was working in the hotel at the time.

20 The appellant was interviewed by investigating police on 24 October 2008. In a video record of interview, he admitted knowing that Mr Hammond worked at the Victoria Hotel and he admitted that, on both the 26 March and 9 April 2008, he had gone to the hotel.

21 In submissions before Yeats DCJ, counsel for the appellant said that the background to the matter was 'quite simple'. The appellant was a darts player in Collie and went to a darts tournament at the Victoria Hotel. According to counsel, the appellant had spoken to the publican to verify that it was in order for him to go to the hotel if Mr Hammond was not there. Counsel for the appellant contended that, when the appellant went to the hotel, he reckoned that Mr Hammond ought not to have been there. He further submitted that when the appellant walked into the hotel, he crossed paths with Mr Hammond, but no words were exchanged and there was no intimidation by the appellant. The appellant had simply gone 'to an area where it is dedicated to play darts'. It was contended that the second occasion was a 'carbon cop[y]' of the other. The essential submission was that the appellant's entry into the hotel was as a result of a misunderstanding of the legal effect of the violence restraining order.

22 Yeats DCJ pointed out to counsel for the appellant that the restraining order was clear in its terms. It included in its provisions that the appellant should not enter upon any premises where the person protected lived or worked.

23 During the course of sentencing submissions, Yeats DCJ said to counsel for the appellant that she was troubled with the proposition that it would be unjust to impose the term of suspended imprisonment. Her Honour said:

YEATS DCJ: You would say that it would not [sic] be unjust, although the person who is the victim of the breaching offences is the same victim? That troubles me. You start with a case which is - Judge Bowden has said came within a whisker, I'm sure, of immediate imprisonment.

24 Yeats DCJ reviewed the circumstances of the original offence committed by the appellant. She noted that Bowden DCJ had imposed a violence restraining order which specifically prohibited the appellant from attending at the place where Mr Hammond worked. She said that the appellant knew that Mr Hammond worked at the Collie [sic Victoria] Hotel. Her Honour then said:

I have heard submissions that you thought you could avoid that by going to his workplace and hoping he wasn't there. I have heard submissions that if you did run into him you didn't do anything intimidatory. It's my view that any time you would attend at those premises where he works, and he would hear about that, even if he weren't there at the time, that that in itself would be intimidating to him.

He has been terribly injured by what you did, and he is an injured person who should have been protected when he goes out to work in a public place. That's what the court ordered, and that's what should have happened.

25 After referring to the provisions of s 80(1) of the Sentencing Act 1995, Yeats DCJ said:

In view of the fact that you have breached a violence restraining order made at the very time that the suspended imprisonment was imposed, and you have breached that order in a way that was very intimidating to the person who suffered the grievous bodily harm, and you have done it on two occasions, I am required as a matter of law to make this order because I do not believe it would be unjust for you now to serve that sentence in all the circumstances as they now are. Therefore I now order that you serve your suspended term of imprisonment.

26 The appellant contends that it was unjust to have activated the suspended term of imprisonment. It is submitted that, on both occasions when the appellant attended at the Victoria Hotel, there was no communication between the appellant and Mr Hammond and that the appellant's behaviour in attending was based on a misunderstanding of the terms of the violence restraining order. It is said that the offending behaviour was not a wilful act of disobeying a court order and intending to intimidate the victim.

27 In addition, the appellant contends that Yeats DCJ erred in concluding that the offending behaviour was 'very intimidating' to the victim when there was no, or no sufficient, evidence on which her Honour could have determined that the victim was intimidated or fearful. It was also put that, because Yeats DCJ appeared to accept that the appellant had arranged through the publican that the victim would not be working when the appellant attended at the hotel, her Honour erred in determining that no disposition was appropriate other than ordering that the appellant serve the suspended term.

28 Section 80(1) of the Sentencing Act 1995 is in very clear terms:

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:

(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

29 Sections 80(2), (3) and (4) add:

(2) The powers in subsection (1) may be exercised as often as is necessary.

(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

(4) If a court does not make an order under subsection (1)(a) it must state its reasons for not doing so.

Application of s 80 of the Sentencing Act 1995

30 The provisions of this section were considered in Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364, where Murray J (with whom Kennedy and Pidgeon JJ agreed), at [31] - [33], said:

... the section requires the judge to order service of the suspended imprisonment unless it would be unjust to do so. On appeal the applicant carries the forensic onus to persuade the court that a judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. It remains the case that it is the judgment of the court at first instance which conditions what is to be done under s 80, not that of the appellate court, and it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused.

As to whether it would or would not be unjust to make the order to which by s 80 the judge is primarily directed, in R v Holcroft [1996] QCA 478; [1997] 2 Qd R 392 at 394 Fitzgerald P said:

'All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust.'

All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment. But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P (at 394); Lee J (at 394 - 395); Fryberg J (at 404 - 405). On the same general consideration reference may be made to R v Holley Ex parte Attorney-General [1996] QCA 480; [1997] 2 Qd R 407, per de Jersey J; Lee J (at 416, 419); Fryberg J (at 425). [31] - [33]

... a most important consideration when considering where the justice of the case lies in the context of s 80 is the legislative policy which emerges clearly from the section that prima facie the court ought to order service of the suspended imprisonment. [34]

32 These conclusions were followed and adopted in Trew v The State of Western Australia [2004] WASCA 155 per Roberts-Smith J, at [11] - [14], (Malcolm CJ and Murray J agreeing).

33 In the present case, the two breaches of the violence restraining order could not be considered to be trivial. Nor were they committed late in the suspension period. They had not been the subject of determination in the Magistrates Court, where the charges were still to be dealt with. However, in all probability they were not breaches which would lead to sentences of imprisonment.

34 It is important to appreciate that, when the appellant appeared before Bowden DCJ, he was given a very clear warning that, should he breach the suspended term, it was almost inevitable that he would have to serve the period of imprisonment.

35 The onus of showing that it was not open to Yeats DCJ to order the appellant to serve the suspended term rests upon the appellant. In my opinion, that onus has not been discharged.

36 The appellant's counsel argued before Yeats DCJ that the appellant had believed after inquiry of the publican at the Victoria Hotel that Mr Hammond would not be working when the appellant went to the hotel. He submitted that there had been a misunderstanding in his mind that if Mr Hammond was not working there, then he could go there for the purpose of the darts tournament.

37 Reference was made by counsel for the appellant to a record of interview with investigating police. In that interview, the appellant was said to have given 'the excuse' that he was at the hotel to play darts because the publican had given him to understand that he could go there if Mr Hammond was not in attendance.

38 The video record of interview was not tendered before Yeats DCJ. The prosecutor stated that her position was that whether or not the appellant had put forward in his record of interview the explanation contended for, this did not 'enhance the argument that a misunderstanding is justified'.

39 If counsel for the appellant wished to rely on what his client had said in the video record of interview, it was open to him to tender that record. No attempt was made to do so. There was no acceptance by the prosecutor that the appellant had entered the hotel 'under a misunderstanding' of the terms of the restraining order.

40 In these circumstances, counsel for the appellant should have been aware that if he wished to establish the circumstances of entry into the hotel as a matter of mitigation, he was obliged to call evidence in support of the contention made: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281; Hutchins v The State of Western Australia [2006] WASCA 258, [25]; Nguyen v The State of Western Australia [2009] WASCA 8 per Steytler P, [20], and Miller JA, [164] - [166]. No attempt was made by counsel for the appellant to call any evidence on the issue, and in those circumstances the case was to be determined on the basis that the appellant went to the hotel on two occasions, in clear breach of the provisions of the restraining order. No application was made to this court under s 40(1)(e) of the Criminal Appeals Act 2004 (WA).

41 In my opinion, Yeats DCJ was entitled to conclude that the appellant's behaviour in walking into the Victoria Hotel would be intimidating to Mr Hammond. Yeats DCJ was adverting to the objective potential effect of the appellant's entry and walking past Mr Hammond, and not to the actual effect.

42 The appellant places reliance on his employment and domestic relationship as mitigating circumstances, but those circumstances are unexceptional. They were fully considered by Bowden DCJ when he imposed the initial term of suspended imprisonment.

43 In the circumstances of the case, the appellant's breach of the suspended sentence was anything but trivial. The breach involved breaches of the restraining order which had been imposed by reason of the violence offence committed by the appellant. That violence restraining order was for the protection of Mr Hammond. It was a lifetime order and the appellant could have been in no doubt about it. What he elected to do was to put his own interests in playing darts ahead of the clear terms of the order which was imposed upon him. In doing so, he ran the risk of having the suspended term of imprisonment called in, which was what, in fact, occurred.

44 The breaches of the violence restraining order occurred approximately 7 months after the imposition of the suspended sentence. The intention of the restraining order was to keep the appellant away from Mr Hammond and away from his place of employment. The appellant's behaviour in entering the Victoria Hotel twice constituted clear breaches of the terms of the violence restraining order in circumstances which were quite inexcusable.

45 In all the circumstances of the case, I consider that it cannot be contended that it was unjust to order the appellant to serve the suspended term of imprisonment. In my opinion, the appellant has failed to discharge the onus of establishing that fact. The ground of appeal is without merit. I would therefore refuse leave to appeal.

46 Bowden DCJ sentenced the appellant to 18 months' imprisonment and made a declaration that he be eligible for parole. He then ordered that the period of imprisonment be suspended for 2 years.

47 Section 89(1) of the Sentencing Act 1995 provides that a court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term. The sentence imposed by Bowden DCJ was a fixed term, and, although suspended, it seems that his Honour had the power to order eligibility for parole. When Yeats DCJ ordered that the appellant serve the suspended term of imprisonment, her Honour said nothing about eligibility for parole. Perhaps it was unnecessary to do so because of the order already made by Bowden DCJ.

48 Section 80(5) of the Sentencing Act 1995 provides:

(5) If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -

(a) section 88 applies in respect of the term to be served; and

(b) the court may make a parole eligibility order under section 89,

as if the term to be served were a term of imprisonment being imposed by the court.

49 This subsection suggests that it is the court ordering a person to serve the suspended term which should make a declaration of parole eligibility (if appropriate).

50 To remove any doubts that may exist, there should be an order that the appellant be eligible for parole after serving 9 months of the fixed term. His earliest date for release on parole would therefore be 10 August 2009.