File No : GN 4103 of 2012, GN 4571 of 2012, GN 4572 of 2012

Criminal law - Sentencing - Breach of bail - Breach of protective conditions - Total effective sentence of 6 months and 1 day - Whether individual sentences manifestly excessive - Whether principle infringed

Bail Act 1982 (WA), s 51

Sentencing Act 1995 (WA), s 7 s 86

1 On 16 January 2013 the appellant was sentenced to a total effective sentence of 6 months and 1 day for three offences of breaching bail contrary to the Bail Act 1982 (WA). He now seeks leave to appeal against that sentence.

2 The offences for which the appellant was imprisoned were one of breaching protective bail conditions contrary to s 51(2a) of the Bail Act and two of breaching bail contrary to s 51(1) of the Bail Act. For the first offence he was sentenced to 4 months' imprisonment and for the other two offences he was sentenced to 1 month and 1 day and 1 month respectively, all cumulative. The total effective sentence of 6 months and 1 day was backdated to commence on 11 November 2012. Given the length of the sentence and the likelihood that most of it would be served before the appeal was heard I ordered that this appeal be given an expedited hearing.

3 The appellant does not suggest that the 4 month sentence for the breach of protective bail conditions was excessive. It is accepted that that sentence was properly open in the circumstances of this case. However, it is submitted that the sentences of imprisonment for the other two offences were manifestly excessive and that it was inappropriate to make those sentences cumulative. It is also submitted that the total effective sentence was disproportionate to the total criminality and therefore offends the totality principle.

4 Whenever a sentence of 6 months and 1 day is imposed, whether it be for a single offence or as a total effective sentence for a number of offences, it raises 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 1995 (WA). Such a sentence suggests that the magistrate may have inappropriately adjusted the sentence upwards.

5 But a suspicion does not justify interference by an appeal court with a sentence. Unless an express error is identified, an appeal against such a sentence will depend upon an examination of all the relevant circumstances to determine whether a sentence of that length could properly have been imposed in the exercise of sentencing discretion. That will require consideration of the maximum penalties available for the offences, the particular circumstances of the offending and the offender's personal circumstances. If, having taken all of those factors into account, a total effective sentence of 6 months and 1 day falls within the range of sentences that were properly open to the magistrate, then the fact that that sentence is one of 6 months and 1 day will not justify allowing the appeal.

6 In this case for the reasons that follow I am unable to conclude that the magistrate was in error to impose cumulative sentences of imprisonment of the length that he did. Nor am I satisfied that the total effective sentence was disproportionate to the total criminality involved.

7 The notice of appeal was filed six days late but that period is short and has been satisfactorily explained. I would therefore grant an extension of time to appeal and grant leave in respect of the grounds (as amended). However, the appeal is dismissed.

8 At all relevant times the appellant has resided in Geraldton. In October and November 2012 he committed a series of offences which resulted in him being arrested, charged and bailed to appear in the Geraldton Magistrates Court. A number of the offences had alcoholism and a volatile domestic relationship as their underlying causes.

9 On 3 September 2012 the appellant was charged with common assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code (WA). The circumstance of aggravation was that the appellant was in a domestic relationship with the complainant. He was released on bail from the Geraldton Police Station at about 10.00 pm on 3 September 2012. He was also charged with disorderly conduct contrary to s 74A(2)(a) and disorderly behaviour in a police station pursuant to s 74A(2)(b).

10 The appellant's bail was subject to a number of conditions. They included that he not contact or attempt to contact the complainant, that he not approach within 20 m of an address at which the complainant was residing and that he not behave in a provocative or offensive manner to residents at that house.

11 The following day, 4 September 2012, the appellant breached his bail. At about 9.30 am on that day he entered the Centrelink offices in Geraldton and saw 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 appellant then walked towards her continuing to use threatening and abusive language. He came within 5 m 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 appellant continued to use threatening and abusive language while attempting to reenter the premises. Police were called and the appellant was arrested. He was charged with breach of protective bail conditions contrary to s 51(2a) of the Bail Act.

12 On 4 October 2012 the appellant was charged with stealing and aggravated burglary. The stealing related to a carton of Tooheys Extra Dry beer and a bottle of Jack Daniels bourbon. An application was made for bail on that day but was refused.

13 A further application for bail was made on 8 October 2012. Bail was granted and the appellant was released on that day. He signed a bail undertaking which included a condition that he would appear in the Geraldton Magistrates Court at 9.30 am on Thursday, 25 October 2012. He failed to appear on that date and as a result a warrant for his arrest was issued.

14 On 27 October 2012 the appellant was charged with stealing a cask of Stanley Tawney Port and giving false details to the police. He was granted bail in respect of these offences on the same day. He signed a bail undertaking which included a condition that he would appear in the Geraldton Magistrates Court at 9.30 am on Thursday, 8 November 2012. He failed to appear on that date and as a result a further warrant for his arrest was issued.

15 On 15 November 2012 the appellant was arrested pursuant to the warrants issued on 25 October and 8 November 2012. He was charged with two breach of bail offences contrary to s 51(1) of the Bail Act.

16 The appellant pleaded guilty to the breach of protective bail conditions on 8 October 2012 and pleaded guilty to the other two charges on 19 November 2012. On 16 January 2013 the appellant came before the Geraldton Magistrates Court for sentencing. He received the sentences referred to above.

17 In sentencing the appellant the magistrate made the following remarks:

Police placed protective bail on you to protect the victim and on 4 October 2012 you happened to bump into the victim but rather than walk away you became embroiled in threatening and abusing her to such an extent that she broke down, collapsed on the floor in tears and needed to be protected from you by people who worked in the establishment. You left the premises but then removed your shirt and tried to reenter, but fortunately for everybody concerned the staff had acted quickly and had locked the door so you couldn't get in.

Protective bail is placed on people for a purpose and that is to protect the victim, the person who is protected by the protective bail; and people who breach protective bail, like people who breach restraining orders, in a manner that you did, that is, actually threatening the protected persons, in my view ought be sentenced to a term of imprisonment.

Similarly, with respect to the two breaches of bail, that is, 4571 and 4572, I note from your record that you have numerous convictions since 2003 for breaching bail. In fact, on several occasions you have been sentenced to terms of imprisonment for breaching bail. I note that each of those terms has been concurrent on other sentences for other offences that you have received, but nevertheless you have received terms of imprisonment for breach of bail before and you yet continue to breach bail.

These three offences, in my view, show a total disregard for court orders. There really is nothing that can be said by way of mitigation in relation to this offending. Ms Svanberg has pressed upon me that when you breached your protective bail you were intoxicated, but being intoxicated may explain why you breached your protective bail and why you breached your normal bail undertakings but it doesn't excuse your behaviour. The fact of the matter is you were on protective bail for a reason and you breached it.

I have considered all sentencing options available to these three charges, including community based dispositions, a presentence order and fines; but it seems to me that the only appropriate disposition, particularly in relation to the protective bail conditions, is one of imprisonment. In my view, the term of imprisonment that ought be imposed, taking into account a discount of 25 per cent for your plea of guilty and also taking into account other matters personal to you, is a term of four months.

With respect to each of the breaches of bail, in my view 4571 of 2012, that is, the breach of bail on 25 October 2012, ought to attract, taking into account your plea of guilty and matters personal to you, a term of one month and one day imprisonment and with respect to 4572, the second of the two breaches of bail, one month's imprisonment. That's a total of six months and one day.

Having decided that a term of imprisonment is appropriate and I should add that when I came to that figure of six months and one day I took into account the approximate two months that you have spent in custody, I took into account as I have said and given you 25 per cent discount for your pleas of guilty and I have also considered all matters personal to you, but when I consider whether I should suspend that term of imprisonment I have considered all of the matters that I have just referred to but in my view the offending, particularly the breach of protective bail conditions is so serious that it is not appropriate in these circumstances to suspend the term.

So the total term of imprisonment is six months and one day and the sentence is backdated to 11 November 2012 (ts 2 4).

18 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J). A claim of manifest excess depends upon establishing 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 exercise of proper sentencing discretion.

19 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: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

20 Section 51(6) of the Bail Act provides that the maximum penalty for an offence under s 51(1) or s 51(2)(a) 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 a breach of bail, the circumstances of a breach of protective bail conditions may justify a higher penalty.

21 The circumstances under which a breach of bail may occur 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 broad consistency in sentencing: Sabau v The State of Western Australia [2010] WASCA 3; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

22 In Kelly v Lockwood [2005] WASC 18 the appellant had been sentenced to a total effective sentence of 7 months' imprisonment for various offences, including a breach of bail offence. The appeal was allowed, the term of imprisonment was set aside and a conditional release order was imposed. The appellant in that case was of a young age and had a serious alcohol addiction exacerbated by brain damage due to years of solvent abuse.

23 In Indich v Bracknell [2005] WASC 225 the appellant had been fined for an offence of disorderly conduct and sentenced to 6 months and 1 day imprisonment suspended for 12 months for a breach of bail. The offence for which the appellant had failed to appear giving rise to the breach of bail was the offence of disorderly conduct. The appeal was allowed, the sentence set aside and substituted with a fine of $400. In that case McKechnie J said that it was a fundamental error for a magistrate to conclude that imprisonment for a period is appropriate and then 'jackup' the sentence to 6 months and 1 day merely to circumvent the mandatory provisions of the Sentencing Act s 86.

24 In Spratt v Canavan [2006] WASC 223 a sentence of 6 months and 1 day's imprisonment suspended for 12 months had also been imposed for a breach of bail. The appellant in that case had committed previous offences of breach of bail. The sentence was found to be manifestly excessive and set aside on appeal. McKechnie J particularly noted that the bail related to other charges which were not in themselves serious enough to warrant imprisonment. His Honour said that that was often a good guide as to the appropriate disposition for a breach of bail.

25 In Turvey v Clifton [2012] WASC 322 the circumstances were very similar to Indich and Spratt. The appellant in Turvey had received a fine for a disorderly conduct offence and a sentence of 6 months and 1 day imprisonment suspended for 12 months for a breach of bail. Again the offence for which the appellant had failed to appear was the one of disorderly conduct. The appeal was allowed, the sentence set aside and substituted with a fine of $400.

26 It should be noted immediately that none of those cases are meaningfully comparable to that of the appellant. The appellant had displayed a course of conduct of failing to comply with bail requirements. The breach of protective bail conditions was particularly serious in its circumstances. The appellant had behaved in an aggressive and violent manner and had shown a degree of persistence in his conduct.

27 The appellant also had a very significant criminal record. The offences for which he was sentenced were not aggravated by the fact that a previous sentence had not achieved its purpose: s 7(2)(c) Sentencing Act. However, it could not be said that the appellant came before the court as a man of good character. The fact that previous sentencing dispositions had not been effective in deterring the appellant was a relevant consideration. It should be noted that he also had a number of prior convictions for breaching bail. The most recent of these had occurred in October 2008 when he was convicted of five offences of breaching bail for which he received sentences of imprisonment of between 2 4 months concurrent on other sentences.

28 The appellant does not dispute that it was open to the magistrate to conclude that a sentence of 4 months' imprisonment was appropriate for the breach of protective bail conditions. However, a sentence of that length could not be imposed unless other sentences of imprisonment were also imposed that resulted in the total effective sentence being one greater than 6 months: s 86 Sentencing Act. Accordingly the appellant submits that unless the sentences for the other two offences can be justified, the sentence of 4 months for breach of protective bail conditions could not be imposed. In my view the 4 month sentence was not merely within the discretionary range for that offence, it could be viewed as a lenient sentence. However, I do not suggest that that conclusion can influence a decision as to whether the sentences for the other two charges are manifestly excessive.

29 The sentence of 1 month and 1 day's imprisonment related to the failure to appear on 25 October 2012. The underlying charges to which that bail related were stealing and aggravated burglary. The aggravated burglary charge was one that on conviction could have attracted a sentence of imprisonment. While the appellant was subsequently acquitted of the stealing and aggravated burglary charges, that does not detract from the serious nature of those offences and that he failed to appear in compliance with his bail.

30 In regard to the breach which attracted the sentence of 1 month, this related to the failure to appear on 8 November 2012 in relation to the stealing and provide false personal details charges preferred on 27 October 2012. Given the value of the property in question the summary conviction penalty for the stealing offence was $6,000 (though the indictable penalty includes imprisonment). The maximum penalty for the provide false personal details offence was 12 months' imprisonment. Whilst these were relatively minor offences, they were not offences that could not of themselves result in imprisonment. In that respect both this offence and the other breach of bail offence can be distinguished from Spratt, Indich and Turvey. In any event the fact that the underlying offence cannot attract a sentence of imprisonment on conviction is only a useful guide; it is not a prohibition on the imposition of a sentence of imprisonment for a breach of bail where this is otherwise justified by the particular circumstances.

31 In this case it was open to the magistrate to view the two breaches of bail as being serious examples given the context in which they occurred. The appellant's persistent defiance of bail conditions and the fact that the breaches occurred relatively close in time to the bail being imposed in each case were aggravating features.

32 There were some mitigating circumstances. These included that the appellant's noncompliance did not appear to be motivated by a desire to abscond or avoid being dealt with on the pending charges. He also pleaded guilty to the breaches at an early stage. However there is nothing to indicate that the magistrate failed to take into account all of the relevant circumstances.

33 As regards totality, the appellant submits that the total effective sentence was disproportionate to the total criminality of the offending as a whole. The three offences in this case were distinct and separate offences committed on different days and not part of a single transaction. There is no obvious error in making sentences for these three offences cumulative. Error can only be said to arise if the total effective sentence could be viewed as being simply too high bearing in mind the nature and number of criminal offences committed. Such an error is not established

34 As I noted at the commencement of these reasons, an individual or total effective sentence of 6 months and 1 day creates a suspicion that the sentence has been reached with the prohibition of 6 month sentences in mind, rather than upon consideration of whether the circumstances of the offences and the seriousness of the offending warranted the imposition of sentences of the length imposed. However a suspicion alone does not justify the setting aside of a sentence.

35 Having regard to the maximum penalties available, the seriousness of the offences and the personal circumstances of the appellant I am unable to reach a conclusion that it was not open to the magistrate to impose the sentences that he did in the proper exercise of discretion. Sentences of the length imposed in each case were within the appropriate discretionary range. Nor am I satisfied that the total effective sentence was disproportionate to the total offending.

36 In those circumstances whilst I would grant leave to appeal in respect of the amended grounds the appeal must be refused.

1. Extension of time granted.
2. Leave to appeal on amended grounds 1 4 granted.
3. Appeal dismissed.