HOWELL -v- DAVIES [2019] WASC 220 (27 June 2019)

Appellant's submissions in the Magistrates Court

1. The appellant was represented when he pleaded guilty. He was sentenced on 26 March 2019. His lawyer told the magistrate that the appellant had attended the Fremantle Magistrates Court on 11 March 2019 for the purpose of attending the hearing. He waited for the matter to be called, but stepped outside for a cigarette.
2. When he returned, he was told the matter had been dealt with. He was given some paperwork and told to attend the Registry. The appellant was concerned to find out whether the restraining order also related to two of his children. He says that he went to the Registry to find out, but that he could not get an answer. The appellant then went outside and saw the protected person. It was submitted on his behalf that he approached her to ask what had happened with the restraining order, though he was 'completely aware that it was the wrong thing to do'.[1]
3. The appellant entered his plea of guilty at an early opportunity. It was submitted on his behalf that he now understood that the restraining order did cover his children and that, if he wished to have contact with them, he would need to commence proceedings.

1. The offence for which the appellant was convicted was an offence contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the Act). The maximum penalty for that offence is a fine of $6,000 or imprisonment for 2 years, or both. In some circumstances, the discretion of the court in imposing a penalty for a breach offence is constrained by s 61A of the Act. That section provides that, where a person is convicted of an offence under, relevantly, s 61(1) and has committed and been convicted of at least two offences within the preceding two years, a penalty must be imposed that is, or includes, imprisonment.[2]
2. As s 61A(5) makes clear, the imposition of a penalty that is or includes imprisonment is mandatory where the conditions are met. However, that requirement has been interpreted as encompassing a suspended sentence.[3] This is because a suspended sentence is one that includes imprisonment.
3. There is an exception to the requirement that s 61A(5) imposes. Section 61A(6) provides as follows:

(6) A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if -

(a) imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of a person protected or the community generally.

1. If both of those circumstances exist it is open to the court to impose some penalty other than one that is, or includes, imprisonment. If one or other of those circumstances does not exist the requirement to impose a penalty that is or includes imprisonment remains.[4]
2. If a court determines that the conditions for the exception are not met the sentencing discretion is narrowed to imprisonment or a penalty that includes imprisonment. Relevantly, there will then need to be a consideration of whether an immediate or suspended sentence of imprisonment should be imposed. In making that decision, the unjust and safety requirements in s 61A(6) are no longer operative. That is not to say that personal factors and safety considerations are irrelevant. Rather, it means that it is not necessary for it to be shown, for example, that it would be unjust to imprison immediately rather than impose a suspended sentence. To put it another way, once the clearly unjust and safety requirements have been taken into account in determining that the options are limited to a penalty that is or includes imprisonment, they do not have any further role to play in deciding between the options that fall within that category of penalties.
3. As to the approach to be taken in deciding between an immediate and a suspended sentence of imprisonment, I adhere to what I said in Rogers v Hitchcock:[5]

A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles set out in the Sentencing Act that it is not appropriate to suspend the term: s 39(2) and s 39(3), Ness v The State of Western Australia [No 2] [2013] WASCA 56 [26] - [27] (Buss JA). Although s 61A(3) states that the section applies despite the Sentencing Act that exclusion does not apply where there is a choice between suspended imprisonment and imprisonment because the section is not inconsistent with the Sentencing Act in that respect. The use of the word 'despite' in this context implies that s 61A will apply notwithstanding anything in the Sentencing Act with which it is inconsistent. This is clearly a reference to s 6(4) and s 39, the effect of which is that a sentence of imprisonment cannot generally be imposed unless all other sentencing options have been excluded. In the circumstances to which it applies s 61A excludes that requirement and, indeed, imposes a rebuttable presumption of imprisonment. However, s 61A is not inconsistent with a requirement that immediate imprisonment should only be imposed where suspended imprisonment has been excluded. Accordingly, even where s 61A applies and the presumption of imprisonment applies the sentencing magistrate is required to consider, and exclude, suspended imprisonment before concluding that a sentence of immediate imprisonment must be imposed.

1. In the present case the appellant was imprisoned for unrelated offences between 4 February 2018 and 15 October 2018, when he was released on parole. The relevant restraining order was made on the day after his release, being 16 October 2018. He breached the order on 2 November 2018 and again on 14 November 2018, and was charged with offences contrary to s 61(1). His parole was cancelled on 26 November 2018 and he then served the balance of his previous sentence until being released from prison on 1 March 2019. In the meantime, he was convicted and dealt with for the two breaches.
2. On 2 January 2019, he was sentenced to 2 months' imprisonment for each of those offences to be served concurrently on each other and with the sentence he was then serving. As at the date of the offence which is the subject of this appeal the appellant had committed and been convicted of two offences under s 61(1) in the preceding twoyear period. Accordingly, s 61A applied. It is accepted by the appellant that that is the position and it was also so accepted before the magistrate.
3. Before the magistrate the appellant's lawyer submitted that a suspended sentence was open having regard to the nature of the breach, the appellant's early plea of guilty and the risk that the appellant would become institutionalised if sent back to prison. In response the prosecution referred to the protected person being in great fear of the appellant and having to be rehoused in her efforts to avoid him.
4. In his sentencing remarks the magistrate accepted that the plea of guilty was entered at a relatively early stage, but said that there was very little else that could be said in mitigation. His Honour noted that the appellant's record showed that this type of behaviour had been repeated over many years.
5. It is relevant to state here that the appellant's record reveals that, including the offences I have already referred to, the appellant has been convicted of 11 breaches of a restraining order in the last five years, in addition to other offences of violence, breaches of bail and breaches of parole.
6. His Honour then went on in his sentencing remarks:

Whilst the record doesn't aggravate the particular offence, what it shows is a repeat behaviour by Mr Howell over many years. It would appear to be in relation to the same protected person, the person under this Family Violence Restraining Order. So if the court determined, because the court has to deal with the facts as they've been read to the court today.

Any approach in a court precinct is of concern because a protected person should have that sense of approaching the court precinct with the sanctity of that and the security of that, without having any interaction with the person who's bound by a restraining order. Having said that, the ultimately - the facts that were agreed to was that a comment and a singular comment saying ['when am I going to see my kids'], and that's against a background where an order had been made final which included the children.

So it's not at the top end of that type of breach but at the same time, any contact where there is a restraining order, is particularly, and can be, very unsettling for a protected person. And as I say, it's amplified where they're in a precinct where they would expect to be secure from any approaches by the person bound and I've pared that all back and determined that a head sentence of 12 months is appropriate.

And that's based on the repeated behaviour by Mr Howell, and apply the 25 per cent of the plea of guilty and consider that perhaps the nature of this breach is not of the most serious of its kind. And then turn my mind to the appropriate penalty as to whether that term of imprisonment, which I've now determined to be a seven months' term of imprisonment, should be suspended conditionally or otherwise suspended in whole.

I think with the continued and repeat breaches by Mr Howell, I can't determine that there are any unjust circumstances that would lead to the court suspending that term of imprisonment. It simply needs to be a term of imprisonment that sends not only the specific deterrence but also the general deterrence that restraining orders are serious orders of the court.

But perhaps underlining all of that is the need to ensure that people who are protected by restraining orders, do feel the security of that. Now, that, by way of the penalties that apply if - were individual breaches. And so ultimately, Mr Howell, it will be a term of imprisonment of seven months. I will make you eligible for parole. And just for the Prisoner Review Board, it might be that, in this particular case, there is some real benefit of Mr Howell having the benefit of some supervised release rather than simply serving out that seven months.

So it is seven months imprisonment, Mr Howell. It will be backdated to that date that you were taken into custody, which will [be] 19 March. (emphasis added)

1. The ground of appeal is that the learned magistrate erred in law in finding that it would be necessary to find 'unjust circumstances' in order to suspend the term of imprisonment. The respondent acknowledges that the use of the word 'unjust' by the magistrate imports the language of s 61A at a point in the sentencing exercise where the factors in s 61A(6) should already have been considered.
2. Having already cited that imprisonment was appropriate and, in effect, not unjust, the magistrate was obliged to consider suspension in the usual way. Although the respondent suggests that there is some ambiguity in the magistrate's remarks, it is accepted that it is arguable that the magistrate did not approach the question of whether to suspend correctly.
3. However, the respondent submits that the error was not material because the sentence imposed was the appropriate one in any event and that, accordingly, the appeal should be dismissed because no substantial miscarriage of justice occurred, relying on s 14(2) of the Criminal Appeals Act 2004 (WA).

1. Whilst it is inappropriate to subject the oral remarks of judicial officers operating in a busy court to overly detailed scrutiny, accepting that slips or verbal infelicities may occur that do not truly reflect the reasoning process[6], it is my view that the magistrate did make the error alleged.
2. Sometimes the possibility of a suspended sentence is dismissed in few words without repeating again all of the relevant considerations. To do so will not necessarily reveal error. However, in this case, the plain meaning of the phrase used by the magistrate is that unless he found it was unjust to do so he could not suspend the sentence of imprisonment. That was to impose a higher bar than had to be met. Indeed, the law required that he not impose immediate imprisonment unless he was positively satisfied that it was not appropriate to suspend the term. Accordingly, the ground of appeal is made out and leave to appeal should be granted.
3. The real issue is whether a substantial miscarriage of justice occurred. In effect, the question is whether a suspended sentence was an appropriate penalty in all of the circumstances of this case.
4. I referred to the nature and significance of breaches of the Restraining Orders Act in Rogers at [46]:

The Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, 32 [13]. Deliberate breaches of court orders or police orders made under the Act undermine the efficacy of such orders. Deterrence both personal and general must play a significant role when orders are breached. If those who are the subject of such orders believe that they can breach them without suffering any real consequence then there will be little incentive to be compliant. The clear intention of s 61A is to impose the presumption of a sentence of imprisonment for repeat offenders. At the time s 61A was introduced it was said that it was intended to address concern that repeat offenders were being dealt with too leniently and needed to be dealt with 'in a far more robust way' (Parliamentary Debates, Restraining Orders Amendment Bill 2011, Second Reading Speech, Legislative Assembly, 22 June 2011, pages 1622-1623 (Attorney General, The Honourable Christian Porter)).

1. In this case the breach did not involve any actual or expressly threatened violence, but it must be recognised that protected persons can feel intimidated or threatened by being contacted or approached by the person they fear. It is protection from such fear, as well as the risk of physical harm, that the orders are intended to provide.
2. Further, there are a number of other factors that were relevant in assessing the seriousness of this offence.
3. Firstly, the breach occurred in the precincts of the Fremantle Magistrates Court, where the protected person was entitled to feel secure.
4. Secondly, the appellant attended there for a hearing in relation to the order, so the requirements of it and the need to comply with it must have been obvious to him and foremost in his mind. Indeed, it was admitted on his behalf, as I have earlier noted, that his approach to the protected person was clearly inappropriate.
5. Thirdly, the approach was physical, rather than merely contact by telephone or some other means. The likelihood that fear will be caused to a protected person is greater where the approach is a physical one, rather than by the other means I have referred to.
6. Fourthly, this was the third breach of the same order within a fourmonth period. This shows a persistent disregard for the orders of the court and that previous sentences of imprisonment had not served as a sufficient personal deterrent.
7. Fifthly, the breach occurred just over 10 days after the appellant was released after serving, concurrently, two months for the previous breaches. The commission of this offence whilst on conditional release from prison was an aggravating feature.
8. Sixthly, this was the eleventh offence of this nature over a fiveyear period. This further reinforces the conclusion that the appellant had shown contempt for authority and heightened the need for specific deterrence. I also note in that regard that previous breaches had resulted initially in fines being imposed, then community-based orders, and then intensive supervision orders, both of which orders had been breached, before the appellant began to receive sentences of imprisonment.
9. Taking those factors into account, as well as all factors personal to the appellant, including his explanation for the breach, the nature of that breach, his early plea of guilty and the risk of his institutionalisation, I am satisfied that it would not have been appropriate to suspend the term of imprisonment in any event. The sentence imposed was the appropriate sentence, in my view. Accordingly, the error was not material and there has not been a substantial miscarriage of justice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Restraining Orders Act 1997 (WA) s 61A(5).

[3] Rogers v Hitchcock [2015] WASC 120 [50]; Day v Millson [2015] WASC 183 [24].

[4] Rogers v Hitchcock [2015] WASC 120 [27].

[6] Strahan v Brennan [2014] WASC 190 [90].