At a hearing on 5 November 2024, we made orders refusing leave to appeal on all grounds of appeal and dismissing this appeal. We said that we would publish our reasons for making those orders later. These are our reasons for making those orders.
[2]
On 31 January 2024, the appellant was convicted in the Magistrates Court on his pleas of guilty of three counts of driving under suspension, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA), and one count of stealing, contrary to s 378 of the Criminal Code (WA). The driving under suspension offences involved the appellant driving a vehicle on the road while subject to a court ordered driver's licence suspension, on 28 July 2023 at Rockingham, 16 October 2023 at Baldivis and 26 November 2023 at Parmelia. The stealing offence involved the appellant taking power tools and building materials valued at $2,704 from a Bunnings store on 18 October 2023 without making any attempt to pay for the goods. The appellant received a sentence of 8 months' imprisonment, suspended for 12 months, for each of these four offences.
At 1.58 am on 11 February 2024, the appellant called his father and left a 32‑second voicemail. In that voicemail, the appellant said, 'You're a fucking dog, man' and 'do yourself a favour and fucking neck it'. The appellant's father recognised the appellant's voice. This contact with his father was in breach of a conduct agreement order made under the Restraining Orders Act 1997 (WA), which was taken to be a family violence restraining order for the purposes of that Act.[1] Breach of a family violence restraining order is an offence against s 61 of the Restraining Orders Act. The maximum penalty for that offence in the circumstances of the present case was a fine of $10,000, imprisonment for 2 years or both.
The appellant initially pleaded not guilty to the Restraining Orders Act offence. However, on 26 March 2024, after speaking to duty counsel, the appellant changed his plea to guilty.
On 12 April 2024, the appellant was sentenced in the Magistrates Court to 7 months' immediate imprisonment for the Restraining Orders Act offence. That sentence was backdated to 6 March 2024 to take account of time spent in custody on remand. The sentencing magistrate also ordered the appellant to serve the suspended terms of imprisonment which had been imposed on 31 January 2024. The suspended terms were ordered to be served concurrently, and to commence on the date they were imposed (12 April 2024). The total effective sentence imposed on 12 April 2024 was therefore approximately 9 months' immediate imprisonment. The appellant was made eligible for parole on all sentences.
On 2 May 2024, the appellant instituted an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) to the General Division of this court. The appeal was ultimately treated as an appeal against the appellant's conviction of the Restraining Orders Act offence, the sentence of 7 months' immediate imprisonment imposed for that offence and the order that the appellant serve the suspended sentences of imprisonment imposed on 31 January 2024.
On 2 August 2024, the primary judge made orders disposing of the appeal to the General Division. Orders 1 - 3 of the primary orders refused the appellant leave to adduce additional evidence in the conviction appeal, refused leave to appeal in the conviction appeal and dismissed the conviction appeal. Orders 4 - 6 refused leave to appeal on grounds 1 - 3 of the sentence appeal, granted leave to appeal on ground 4 of the sentence appeal and dismissed the sentence appeal.
The primary judge gave ex tempore reasons for making the primary orders, which were subsequently published as written reasons.[2]
The primary judge noted that the grounds of the conviction appeal were:[3]
The magistrate failed to act upon his legal obligation to not accept subsequent guilty plea, proceeding to sentencing knowing that the facts, and the offence itself, were disputed.
The plea of guilty was only submitted under duress.
The appellant was not afforded the opportunity to be legally advised or represented and should the appellant have been afforded that opportunity, would not currently be serving a period of incarceration.
The primary judge held that none of these grounds had any reasonable prospect of succeeding.
In relation to grounds 1 and 2, the primary judge found that the appellant made a rational choice to plead guilty, having received legal advice as to his options. He hoped that by doing so he would receive a sentence which enabled his prompt release from custody. When that did not eventuate, he sought to revoke his plea. The additional evidence which the appellant sought to adduce did not establish he was acting under duress when he entered the guilty plea.[4]
In relation to ground 3, the primary judge found that, before the appellant entered his plea of guilty on 26 March 2024, the matter had been stood down to enable the appellant to seek legal advice. After that, duty counsel informed the presiding magistrate, in the presence of the appellant, that he was 'electing to represent himself'. The appellant did not demur.
The primary judge noted that the grounds of the sentence appeal were:[5]
The magistrate failed to consider other sentences which were reasonably open to him such as an Intensive Supervision Order.
The seriousness and facts of the breach VRO charge was exaggerated by the Sentencing Magistrate resulting in unnecessary imprisonment.
The character of the appellant was improperly described. The magistrate purposely disregarded all character references, including that of the Deputy Mayor of Rockingham.
The magistrate took into account both irrelevant and incorrect factors his Honour described at sentencing resulting in unnecessary immediate imprisonment.
The primary judge found grounds 1 - 3 to be without merit, in circumstances where the magistrate expressly stated that he had ruled out sentencing the appellant by way of fine, community based order, or intensive supervision order and specifically referred to a number of the character references submitted on the appellant's behalf. There was nothing to support the assertion that the sentencing magistrate exaggerated the seriousness of the offence.[6]
The primary judge treated ground 4 of the sentence appeal as contending that:[7]
[3]
(a) the sentence imposed on the charge of breach of violence restraining order was manifestly excessive; and
(b) the learned magistrate erred in ordering the appellant to serve the suspended terms of imprisonment.
[4]
In dealing with the allegation that the sentence for the Restraining Orders Act offence was manifestly excessive, the primary judge applied well-established principles summarised by this court in Kabambi v The State of Western Australia.[8] Her Honour noted that general deterrence was a paramount consideration in cases of this kind.[9] The appellant's history of defiance of court orders, and the fact that the offence was committed only 11 days after the imposition of the suspended imprisonment orders, entitled the court to place significant weight on personal deterrence as a sentencing factor.[10] The appellant's positive character references had to be balanced against his criminal record, which showed him to be of poor prior character.[11] There was very limited evidence of any steps the appellant had taken towards his rehabilitation.[12] While the appellant had employment and stable housing available, those potential protective factors were also present when the appellant committed the offences for which he had been sentenced. The fact that his partner was pregnant had not caused him to refrain from offending.[13] The primary judge had previously observed that the sentencing magistrate applied a 15% discount under s 9AA of the Sentencing Act 1995 (WA) and had noted that, at the age of 38 years, age was not a mitigating factor.[14] After dealing with authorities referred to by the respondent, the primary judge concluded:[15]
[5]
In my view, while the sentence imposed was high, I am unable to conclude that it was not open to the learned magistrate, having regard to the maximum penalty for the offence, the seriousness of the offending, the matters personal to the offender, and the need for general and personal deterrence. The sentence was not unreasonable or plainly unjust.
[6]
In relation to the suspended sentences, the primary judge noted that s 80(3) of the Sentencing Act provides that a court must make an order that the whole of the terms be served unless it decides that it would be unjust to do so in view of all of the circumstances that have arisen, or have become known, since the term of suspended imprisonment was imposed.[16] The primary judge said:[17]
[7]
I also am unable to conclude that it was inappropriate for the learned magistrate to order that the appellant serve the terms of imprisonment which had previously been suspended. At the time those suspended sentences were imposed the appellant was clearly warned what would happen if he committed a further offence which carried with it a term of imprisonment. He reoffended within 11 days by breaching another court order. While the offence which was committed was of a different character to the offences for which the suspended sentences were imposed, the reoffending was itself very serious. It is plain that the appellant had failed to take advantage of the last chance he was offered.
[8]
The primary judge concluded that nothing had been put before her which suggested that it would be unjust for the suspended sentences to be served.[18]
[9]
On 19 August 2024, the appellant lodged an appeal notice in the present appeal against the orders dismissing his appeal against sentence to the General Division. The identification of the orders appealed against, the ticking of the box indicating the appeal was against the sentence and the draft grounds of appeal on the appeal notice, made it plain that the appellant was only appealing against the primary orders made in the sentence appeal to the General Division.
On 5 September 2024, the appellant filed an application in an appeal in which he sought bail pending the determination of the appeal and an urgent appeal order. On 17 October 2024, Buss P ordered that an appellant's case dated 8 October 2024 not be accepted for filing and extended the time for the appellant to file and serve an appellant's case to 4.00 pm on 28 October 2024. The appellant filed his appellant's case on 28 October 2024 pursuant to these orders.
The appellant's case identifies the following three grounds of appeal:
[10]
Ground 1: The Primary appeal Judge erred in law in failing to decide that one or more of the grounds of the Appellant's conviction appeal, as set out in paragraph 34 of Her Honour's reasons for decision delivered on 2 August 2024 had been established.
Ground 2: The primary appeal judge erred in law, and in fact in failing to decide that one or more of the grounds of the appellant's sentence appeal as set out in paragraph 35 of Her Honour's reasons for decision delivered on 2 August 2024 had been established.
Ground 3: There has been a miscarriage of justice.
[11]
The appellant's case contains the following written submissions in relation to these grounds of appeal.
[12]
Ground 1: Legal merit, individually or combined in all the grounds of appeal was established. The Guilty plea should have been set aside. The evidence submitted considered in favour of the appellant. Every single one of the Legal Authorities mentioned by the Respondent and of Her Honour, did not compare, when one looks at the: A) Innocence of the Appellant, B) The facts and seriousness of what actually occurred in those cases. The Justice was in fact in error at sentencing by accepting the guilty plea knowing that the facts were disputed, that the Appellant maintains his innocence. The plea was handed down after numerous Not Guilty pleas. The Appellant put his hand up for what he did, and for what he did not he pleaded Not Guilty. The plea of Guilty was submitted under duress and in error was accepted.
GROUND 2: Under many cases a suspended term of imprisonment has been reinstated, on more than two occasions, before placing an offender into custody. It was in fact reasonably open for the Justice to impose an Interim Supervision Order something the Appellant has never had. Many offenders have multiple chances. The Appellant not only was innocent of breaching Conduct Agreement Order, but even if he was not it was open to take everything else into account and give the appellant the opportunity to live his life. He has lost his home as a result, is in debt, has done it so hard in fact this period anyone with compassion would see that it is simply unjust, what the Appellant has suffered.
It is submitted, with respect, that the 2 Grounds shall be accepted, leave granted, in the interest of Justice and the Law. The Appellant should be at least, Resentenced.
[13]
On 29 October 2024, the Acting Court of Appeal registrar issued an amended Registrar's Notice to Attend on 5 November 2024 for the court to consider the application for leave to appeal, the application for bail and whether the court should make an urgent appeal order.
[14]
The appellant's right of appeal to this court from the primary judge's orders is provided for by s 16(2) of the Criminal Appeals Act. Under s 18 read with s 9 of that Act, leave to appeal is required for each ground of appeal and this court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless the court gives leave to appeal on at least one ground of appeal, the appeal is taken to have been dismissed.
There is no merit to ground 1 of the appellant's appeal to this court. The ground stands outside the scope of the appeal to this court, which is only against the primary orders relating to the sentence appeal. In any event, nothing in the material before this court provides any reason for doubting the correctness of the primary judge's decision to dismiss the appeal against conviction in the General Division. Ground 1 has no reasonable prospect of succeeding.
Grounds 1 - 3 in the appellant's sentence appeal to the General Division were misconceived and without merit for the reasons explained by the primary judge. Ground 2 of the appellant's appeal to this court is likewise without merit to the extent it contends that the primary judge should have upheld grounds 1 - 3 of the appeal to the General Division.
Nor did ground 4 of the sentence appeal to the General Division have any reasonable prospect of succeeding so far as it concerned the magistrate's order that the appellant serve the suspended sentences. As the primary judge noted, the magistrate was required by s 80 of the Sentencing Act to order the appellant to serve the terms of imprisonment that were suspended unless he decided it was unjust to do so in view of all of the circumstances that had arisen, or had become known, since the suspended imprisonment was imposed. It is difficult to comprehend how the magistrate might have been satisfied that requiring the appellant to serve the suspended terms was unjust. The suspended terms were imposed in respect of relatively serious driving offences, and a stealing offence, committed against a background of the appellant's lengthy criminal history of committing driving, property and drug offences. The appellant had served only 11 days of the suspension period before reoffending in a serious manner on 11 February 2024. It was clearly open to the sentencing magistrate to fail to be satisfied that it would be unjust to require the appellant to serve the suspended sentences. Indeed, in the circumstances it is difficult to see how the sentencing magistrate could have made any other order.
The fact that the appropriate order was to require the appellant to serve the suspended terms of imprisonment for the driving offences and stealing offence limited the sentencing options open to the magistrate in respect of the Restraining Orders Act offence. That fact meant that s 76(3)(b) and s 81(3)(b) of the Sentencing Act respectively precluded the imposition of a suspended sentence or conditionally suspended sentence for the Restraining Orders Act offence. That fact also meant that a community based order or an intensive supervision order would not be appropriate types of sentences for the Restraining Orders Act offence. Given the appellant's antecedents, which elevated the significance of personal deterrence as a sentencing factor, it was well open to the sentencing magistrate to be satisfied that a sentence of immediate imprisonment was the only appropriate sentencing option for the Restraining Orders Act offence.
The primary judge recognised that the length of the individual sentence of 7 months' immediate imprisonment for the Restraining Orders Act offence was high. We agree with that assessment given the fact that the appellant pleaded guilty to the offence and that the maximum term of imprisonment was only 2 years. However, having regard to the importance of general deterrence and the elevated significance of personal deterrence in this case, we agree with the primary judge's assessment that the length of the sentence imposed was not, in all the circumstances of this case, unreasonable or plainly unjust. Further, the severity of the individual sentence for the Restraining Orders Act offence was moderated by the fact that all but about one month of that sentence was to be served concurrently with the suspended terms that the appellant was ordered to serve.[19]
For the above reasons, we are satisfied that the primary judge correctly concluded that ground 4 of the appeal to the General Division was not established. We are satisfied that ground 2 of the appeal to this court has no reasonable prospect of succeeding.
Ground 3 of the appeal to this court does not add anything to the previous two grounds.
[15]
For the above reasons none of the grounds of appeal to this court have any reasonable prospect of succeeding. At the hearing on 5 November 2024, we were satisfied that leave to appeal on those grounds should be refused and that the appeal should be dismissed. The appellant's application in an appeal seeking bail pending determination of the appeal and an urgent appeal order were redundant. We therefore made the following orders:
Leave to appeal is refused on all grounds of appeal.
The appeal is dismissed.
The appellant's application in an appeal filed on 5 September 2024 is dismissed.
[16]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[17]
[2] Lawson v Director of Public Prosecutions [No 2] [2024] WASC 279 (primary decision).