LMN -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 275 (9 July 2025)

1. Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding;[2] that is, the ground must be shown to have a rational and logical prospect of success.[3]
2. Where leave is not given on a ground of appeal, that ground is taken to be dismissed.[4]
3. Pursuant to s 10(3) of the CA Act, an appeal cannot be commenced against a decision later than 28 days after the date of the decision unless otherwise ordered.
4. The appellant was sentenced on 2 December 2024. His appeal notice was filed on 4 February 2025, some 35 days after the appeal period had expired.
5. The appellant applied for an extension of time within which to appeal, and the respondent did not oppose it.
6. The appellant's delay was adequately explained by the affidavit evidence filed on his behalf, and I was satisfied in those circumstances that an extension should be granted.
7. Accordingly, I granted the extension.

1. The facts relevant to the appellant's offending were reflected in an amended statement of facts read out by the prosecution at the sentencing hearing on 2 December 2024 after the appellant had entered his guilty pleas.
2. The victim of each of the four offences was the appellant's 13‑year-old son, for whom the appellant was the sole caregiver at the time of the offending.
3. At that time, the appellant and the victim lived together in a caravan in a bush camp in Western Australia.
4. The three charges of aggravated common assault all relate to incidents which occurred between 23 May 2024 and 23 June 2024, whilst the charge relating to the threat incident occurred on 24 June 2024.
5. On 27 June 2024, the victim attended a Western Australian police station and reported all the incidents to the police. The following day, the police attended the campsite and arrested the appellant.
6. The facts relating to each incident were as follows.

1. The appellant was at the bush camp with the victim, who was sitting outside at the front of the caravan.
2. The appellant exited the caravan and observed that the dishes were not cleaned; a task which he had requested the victim to do earlier.[5]
3. The appellant then began to verbally abuse the victim 'for not doing enough around the campsite'.[6]
4. Following the verbal abuse, the appellant then approached the victim, grabbed him by his shirt and dragged him to the camping sink where the dirty dishes were stacked.
5. The appellant yelled at the victim and ordered him to clean the dishes. He then pushed the victim into the camping sink.[7]
6. The victim finished cleaning the dishes and completed other tasks around the camp site before returning to the caravan and going to sleep.

1. The appellant was at the campsite with the victim. The victim was sitting in front of the caravan. The appellant became angry about the victim's 'laziness' and 'continued shouting' at the victim for not 'doing enough jobs'.[8]
2. The appellant then approached the victim and pushed over the camping chair which the victim was sitting on, and the victim then fell on the floor.
3. The appellant then nudged the victim as he walked past. After the victim got up, he completed several tasks around the campsite in an attempt to avoid 'any further aggression' from the appellant.[9]

1. The vaping incident occurred between 17 June and 23 June 2024. The victim returned to the campsite from school. Upon his return, he was confronted by the appellant about vaping.
2. The appellant demanded the victim's backpack, but the victim refused to provide it. The appellant then grabbed hold of the victim's backpack and a 'tussle' ensued.[10]
3. Throughout the struggle, the appellant pushed the victim backwards and he fell, landing on his bottom. As the victim got up, the appellant 'invaded his personal space' and told him to get him a coffee. The victim made the appellant a coffee and stayed quiet 'to avoid any further interaction' with him.[11]

1. The threat incident occurred in the evening on 24 June 2024 when both the appellant and victim were at the campsite.
2. The victim was outside the caravan looking for a job to do before bed. While the victim was standing at the front of the caravan, the appellant walked out of the caravan and began verbally abusing the victim for 'being lazy'.[12]
3. While the appellant was yelling at the victim, the appellant picked up a tent pole and motioned it in the direction of the victim. The tent pole was then taken from the appellant by another occupant of the camp.
4. The appellant then kicked a camp chair towards the victim, 'narrowly missing him'.[13] The appellant left the victim outside crying while returning inside the caravan.
5. Later that night, the victim returned into the caravan and slept there as he had nowhere else to go.
6. The following morning, on 25 June 2024, the appellant locked the victim outside of the caravan and would not let him in. The victim stayed outside and avoided the appellant for some time until the appellant came out of the caravan again.
7. When the appellant exited the caravan, he began verbally abusing the victim again and said words to the effect of 'stay out of my sight or look out'.[14]
8. The victim became fearful of what the appellant might do and ran away from the camp. The victim managed to contact another family member who picked him up and 'kept him in a safe place'.[15]
9. It was after this offence occurred, on 27 June 2024, that the victim reported the appellant's behaviour to the police.

1. In her sentencing remarks, the learned magistrate considered an aggravating feature of the offending to be that it had occurred in the context of domestic violence against the appellant's child in circumstances where the victim was particularly vulnerable given his age, the fact that he had limited support in Perth and relied on the appellant's 'sole care'.[16]
2. Her Honour described all four offences as 'very serious', the threat incident being so due to the use of a weapon.[17]
3. The magistrate also considered the three aggravated assault incidents to be the 'most serious' of the offences, having involved 'actual violence'[18] and the 'use of force'.[19] Nonetheless, her Honour acknowledged that no physical injury was inflicted on the victim as a result of any of the offending.[20]
4. Her Honour did not accept that the offending was a 'one-off aberration' as it had occurred over a period of a month and involved several incidents.[21]
5. In this connection, the magistrate found the appellant's offending to be persistent,[22] though she accepted the incidents were 'outbursts over a short period of time'.[23]
6. Her Honour considered the three aggravated assault incidents to be 'at the low to mid‑range, closer to mid‑range level of offending of this type',[24] though later indicated that she placed the appellant's offending 'closer to the mid‑range - lower to mid - upper lower to mid‑range of seriousness'.[25]
7. The magistrate also considered the significant impact which domestic violence can have on a young person. However, she noted that the discount afforded to the appellant for his guilty plea reflected the fact that the young victim was spared giving evidence in court which could have exacerbated his trauma.
8. Her Honour found that the appellant's plea of guilty to be indicative of remorse and contrition. She also had regard to the appellant's antecedents, personal circumstances and the fact that although the appellant could not be said to be of good character because he had a criminal history in Western Australia and another State, the charges represented the appellant's 'first assault-based offending'.[26]
9. Whilst concluding there did not 'seem to be a significant need for specific deterrence in this matter',[27] the magistrate noted the need for general deterrence by imposing a sentence which sent a message to the community about the harm of domestic violence including upon children.
10. Her Honour then went on to discuss the appellant's personal circumstances. These included that, at the time of sentencing, the appellant was a 38-year-old man whose circumstances had led to him living in a bush camp. The magistrate also observed that it seemed the appellant had 'taken all of [his] frustration out on [the victim] at times, whilst also trying to deal with him as a teenage child going into adulthood, which is a very important time for a young man'.[28]
11. The magistrate noted the appellant identified as an Aboriginal man, and that the victim's mother had abandoned the appellant and the victim when the victim was born. Her Honour went on to observe that, at the time of sentencing, the appellant was in a stable relationship, in receipt of Centrelink benefits, and hoping to get work in the future. She also noted that the victim was now living with his grandmother and aunt.
12. However, ultimately her Honour concluded that a term of immediate imprisonment was the 'only' appropriate disposition given the seriousness of the appellant's offending.[29]

1. In his appeal notice, the appellant raised three grounds of appeal:

(1) The individual sentence imposed for each of the dish incident, the chair incident and the vaping incident was manifestly excessive as to type (Ground 1).

(2) The sentence imposed for the threat incident was manifestly excessive as to type (Ground 2).

(3) The total effective sentence was manifestly excessive as to type (Ground 3).

1. In addition, the appellant applied for leave to add a fourth ground of appeal under s 10 of the CA Act; that the learned magistrate erred in fact in sentencing the appellant for the dish incident on the basis that he had grabbed the victim by the throat when such an allegation had not formed part of the statement of material facts (Ground 4).
2. The respondent did not oppose such leave being granted, and its submissions were drafted on the assumption that it would be.
3. Noting the absence of any evident prejudice to the respondent, and in circumstances where for reasons which will soon become apparent I considered Ground 4 to enjoy more than reasonable prospects, I granted leave to the appellant accordingly at the hearing of the appeal.
4. It is convenient to address Ground 4 first.

1. Ground 4 relies upon an asserted error of fact relating to the dish incident.
2. According to the appellant, the facts relevant to this incident, and read out by the prosecutor, were as follows:

The facts for [the dish incident], which is now an aggravated common assault, they are between 23 May '24 and 23 June '24, the accused was at the bush camp with the victim. The victim was sat at the front of the caravan when the accused came out and saw the dishes had not been cleaned as per his earlier request. The accused has verbally abused the victim for not doing enough around the campsite. He then approached the victim, grabbed him by his shirt and dragged him to the camping sink where dirty dishes were stacked.

The accused yelled at the victim and ordered him to clean the dishes, before pushing him into the camping sink. The victim completed the dishes and other jobs before returning to the caravan and going to sleep.[30]

(emphasis added)

1. However, in her sentencing remarks her Honour said, in relation to the dish incident, that:

I am told that at the time you had asked your son to clean the dishes and you had become verbally aggressive towards him. You grabbed him by the throat and you have pushed him into the sink, and that was that assault.[31]

(emphasis added)

1. According to the appellant, the erroneous fact, reflected in the above emphasised words, 'elevated the seriousness of the offending and the error was therefore material'.[32]
2. The respondent accepts that in reciting the facts her Honour 'incorrectly noted'[33] that the appellant had grabbed the victim by the throat. However, the respondent contends the error was not 'material' for the following reasons.
3. First, the erroneous reference was brief and not repeated.
4. Secondly, nothing in magistrate's remarks suggests her Honour placed any particular weight on the incorrect fact or considered it to be an aspect of the offending which elevated the seriousness of the appellant's conduct.
5. In this connection, according to the respondent, the magistrate's only comment on the seriousness of the dish incident was that it involved actual violence which applied equally to the facts admitted by the appellant. Moreover, the respondent says the three-month sentence which the magistrate indicated she would impose for the dish incident (which was subsequently reduced to two months for totality) had also been imposed for the vaping incident and the dish incident was also based on conduct consisting of a struggle and a push.
6. Thirdly, and significantly according to the respondent, there was an absence of any elaboration or focus in her Honour's reasons on the appellant having supposedly grabbed the victim's throat.
7. According to the respondent, it is reasonable to expect that her Honour would have expressly commented if she had given an assault of such a character any particular weight noting the relatively new statutory provisions relating to non-fatal strangulation,[34] and the accompanying research-based commentary surrounding the enactment of those provisions.[35]
8. Fourthly, a three-month term of imprisonment was in any event available to reflect the correct factual basis of the offending.

1. The legal principles governing appellate intervention in sentencing in the context of an alleged express material error of fact are well known.
2. They may be summarised as follows:

(1) Not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene.[36]

(2) An appellate court can only intervene if the sentencing judge made an express or implied material error.[37]

(3) Express error involves acting on a wrong principle, for example by mistaking the law or facts or by taking an irrelevant matter into account.[38]

(4) Whether a particular express error is material will depend upon a consideration of the circumstances of the particular case, but it is as well to appreciate that combing through sentencing remarks on the hunt for some minor express error will be unproductive unless it can be shown to be material to the exercise of the sentencing discretion.[39]

(5) An error will be 'material' if the error affects or is capable of affecting the actual sentence imposed by the sentencing judge.[40]

(6) An error is capable of affecting an actual sentence if it has the capacity to affect the sentencing judge's assessment of the seriousness of the offence having regard to the factors specified in s 6(2) of the Sentencing Act 1995 (WA) which the judge must take into account when sentencing the offender.[41]

(7) When a sentencing judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect him or her, mistakes the facts, or does not take into account some material consideration,[42] the appellate court does not assess whether and to what degree the error influenced the outcome.[43]

(8) In such a case, the judge's sentencing discretion has miscarried.[44]

(9) Once it is established that the sentencing judge's discretion has miscarried,[45] because of a material error in the sense referred to in (5) above,[46] it is the duty of the appellate court to exercise the discretion for itself afresh.[47]

(10) If the appellate court would have imposed a sentence different from that imposed by the primary judge, it will have decided that a different sentence should have been imposed, the appeal may be allowed and the appellant resentenced. [48]

(11) However, if the appellate court is of the view that no different sentence should be imposed, the appeal will be dismissed.[49]

1. The respondent is with respect correct that the magistrate only once referred to the appellant having supposedly grabbed the victim by the throat.
2. It is also correct that her Honour's comment on the seriousness of the dish incident, involving actual violence, applied equally to the admitted facts, and that the sentence which the learned magistrate indicated she would impose for the dish incident (before reducing it for totality) was also imposed for the vaping incident which had, likewise, involved conduct consisting of a struggle and a push.
3. Indeed, the same may be said of the chair incident.
4. I also agree that it may well have been reasonable to have expected her Honour to have expressly commented if she had given an assault to the victim's throat any particular weight.
5. Nonetheless, as has been seen, it is enough for an error to be 'material' if it is capable of affecting the sentence actually imposed; and it is so capable if it has the capacity to affect the sentencing judge's assessment of the seriousness of the offence having regard to the factors specified in s 6(2) of the Sentencing Act.
6. In my view, the learned magistrate's error was indeed 'capable' of affecting the actual sentence imposed by her Honour. It was capable of doing so at least because an assault involving grabbing a victim by the throat is usually, if not invariably, of significantly more serious a character than an assault which merely involves grabbing the victim by the shirt.
7. That much is recognised by the maximum penalties reflected in the very provision in the Code alluded to by the respondent which addresses the unlawful impeding of another person's normal breathing (s 298), when compared with the maximum penalty for common assault (s 313(1)(a)).[50]
8. It follows, in my view, that the error indeed had the capacity to affect her Honour's assessment of the seriousness of the offence having regard to the factors specified in s 6(2) of the Sentencing Act including the circumstances of the commission of the offence, the vulnerability of the victim, and any aggravating factors.
9. I digress to observe the appellant's guilty pleas were entered in a context where the prosecution had indicated it would discontinue two further charges against him, one of which was a charge for impeding another person's breathing.[51]
10. Her Honour duly recorded both of those further charges as discontinued, pursuant to s 25 of the Criminal Procedure Act 2004 (WA), shortly after the appellant entered his guilty pleas to the four charges and before hearing sentencing submissions and proceeding to sentence the appellant.[52]
11. Whether the nature of one of the discontinued charges in any way contributed to her Honour having fleetingly uttered the erroneous words matters not. There can in any event be no criticism of the learned magistrate, operating in a busy court in which cases must be managed quickly and efficiently, for having done so.[53]
12. Nevertheless, for the reasons indicated earlier I am satisfied the error was such as to have been, at the very least, capable of affecting the actual sentence imposed.
13. I am not to assess whether and to what degree the error may have actually influenced the outcome.[54]
14. It necessarily follows that Ground 4 will be upheld.

1. Where the sentencing discretion miscarries in relation to an individual sentence forming part of a total effective sentence, the total effective sentence must be set aside and the court must exercise the sentencing discretion, afresh and for itself, on all aspects of the sentence imposed.[55]
2. This is because the total effective sentence, including any orders for concurrency or cumulacy or any other adjustments, reflects the overall criminality of the appellant's offending.[56]
3. Given the above, and my conclusions with respect to Ground 4, this Court's jurisdiction was enlivened to resentence the appellant for each of the offences of which he was convicted.
4. For the reasons which follow, I considered a different sentence should have been imposed; both with respect to the dish incident and overall.
5. In the exercise of my sentencing discretion, the sentence to be imposed was required to be commensurate with the seriousness of the offence and having regard to:

(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.[57]

1. For the three aggravated assault incidents, the statutory maximum is 3 years' imprisonment or a fine of $36,000.[58]
2. For the threat incident, the statutory maximum is 5 years' imprisonment (or 18 months and a fine of $18,000 if it is a summary conviction).[59]
3. The offending was without question serious.
4. Not only did it comprise four separate incidents over the space of a month, but it was committed by an adult male against his 13‑year-old son for whom he was the sole caregiver.
5. Although her Honour did not have the benefit of a victim impact statement, she was with respect correct to note that the appellant's offending could be expected to have caused the victim 'ongoing trauma and harm'[60] despite having caused no physical injury to the victim.
6. Her Honour was also correct to observe that:

Domestic violence has a significant impact on young people. It affects their ability to form relationships in the future, it erodes the loss of safety and their trust, and gives rise to feelings of loneliness and self-worth. And in this circumstance your son was entitled to feel safe, and every time you verbally abused him and insulted him, you made him feel fear and a little less safe.[61]

1. Indeed, given the nature of the appellant's offending the need for general deterrence was manifest.
2. As the Court of Appeal recently observed:

Domestic violence is a scourge on society. Awareness of this type of offending and concern to prevent it have grown markedly in recent years. Persistent violence and intimidation in the context of family relationships must be strongly discouraged by appropriate sentences.[62]

1. That said, it may be accepted that the appellant's offending did not fall at the highest end of the scale.
2. Earlier in these reasons, I summarised some of her Honour's remarks about the appellant's personal circumstances and mitigating factors at the time of sentencing. I accept as correct not only those matters, but also the further matters recorded by the learned magistrate on the transcript relevant to the appellant's personal circumstances based as they were on his counsel's sentencing submissions before her Honour.
3. In particular, and like her Honour, I accept that although the appellant did not come before the Court as a person of previous good character, none of his prior offending involved acts of violence.
4. I also had regard to, and accepted, the appellant's counsel's submission to the effect that specific deterrence has largely already been achieved for at least two reasons.
5. First, in consequence of his offending, the appellant is now subject to a five-year FVRO. The effect of that order on the appellant is particularly significant. He has gone from a position of being sole caregiver for most of his son's life, to a point where he will have no contact with his son until his son at least 18 years' of age.
6. Secondly, the appellant has already served approximately 2½ months of the 8-month custodial sentence imposed by her Honour before being released on bail in February 2025 pending determination of the appeal.
7. As his criminal record reveals, the appellant had not previously been sentenced to a term of imprisonment.
8. By his counsel, the appellant described his time in custody as exceedingly harsh, having included some six weeks in Hakea with prolonged periods in lockdown.
9. It is a matter of public record that in a report released on 3 April 2025, the Inspector of Custodial Services recorded that he had formed a view that prisoners in Hakea were being 'treated in a manner that was cruel, inhuman, or degrading',[63] describing living conditions there as 'inhumane' and failing to meet 'basic guidelines'.[64]
10. These observations by the Inspector were based on conditions observed by him in May 2024, several months before the appellant's incarceration commenced in December 2024.
11. Nonetheless, and whilst the precise details of the appellant's assertions of hardship were not accepted by the respondent given the absence of specific evidence, counsel for the respondent properly conceded that the conditions in Hakea were both 'critical' and 'severe'.
12. I took the above matters into account for the purposes of resentencing.
13. Like her Honour, I also considered the appellant's guilty plea, and accepted the magistrate's finding that pursuant to s 9AA of the Sentencing Act a discount of 15% was appropriate.
14. I applied the same discount in imposing the new sentences reflected in paragraph 149(6) below.
15. As the appellant properly acknowledges, sentences for family violence related offences have increased in recent years and some of the earlier cases to which the appellant took the Court are therefore of limited assistance.
16. However, some of the relatively more recent decisions to which I was taken, albeit in the context of Grounds 1 - 3, include Homola v Radwell,[65] Li v Skala,[66] Clarke v Cantatore,[67] Brown v Nation,[68] Malpuss v Giuffre,[69] Houghton v The State of Western Australia [No 2],[70] Mallard v Director of Public Prosecutions,[71] and Caruan v Director of Public Prosecutions.[72]
17. Whilst it is unnecessary in these reasons for me to discuss the facts of these cases or the others to which the parties referred me,[73] I nonetheless had regard to them in determining the new sentences set out below.
18. In determining those sentences, I also had regard to the statutory framework within which the sentencing discretion operates.[74]
19. Specifically, I had regard to the fact that the imposition of a term of immediate imprisonment is a sentence of last resort.[75]
20. Noting the serious nature of the offences, the vulnerability of the victim, the offending having involved several incidents over the course of a month, and the importance of general deterrence, I was satisfied a term of imprisonment was in all the circumstances appropriate[76] despite the victim having suffered no physical injuries, the appellant having had no prior conviction for violent offending, and the prospect of specific deterrence having already been achieved.
21. It follows that I did not accept the submission advanced on behalf of the appellant to the effect that it was in all the circumstances appropriate to use a 'lesser' sentencing option in resentencing the appellant.[77]
22. Following discussions with counsel at the hearing on 26 May 2025, I considered that I would be assisted by a pre-sentence report and adjourned the matter for such a report to be obtained from the Department of Corrective Services pursuant to s 20 of the Sentencing Act.
23. The officer who prepared the pre-sentencing report noted that the appellant's criminogenic needs, which were identified in the report, could be addressed and mitigated through engagement in intensive community programmes, such as the 'Communicate Connect and Respect' and the 'Stronger Families Caring Dads' programmes. In addition, the officer noted that a mental health care plan through a general practitioner would also be beneficial.
24. According to the officer, the appellant expressed a willingness to comply with the requirements of a community-based disposition if granted.
25. Having carefully considered the parties' submissions, the contents of the pre-sentence report, and the other materials before me, I was positively satisfied that the imposition of a conditionally suspended term of imprisonment on each charge would be commensurate with the seriousness of the appellant's offending and would act as a sufficient general deterrent in all the circumstances.
26. In determining the new sentences, I also had regard to the time already served by the appellant in custody, being approximately 2½ months between 2 December 2024 and 14 February 2025. I took this time into account both in conditionally suspending the term of imprisonment, and also in a more general way in determining the length of each individual sentence to be imposed,[78] noting the combined effect of s 77(2) and s 86 of the Sentencing Act is such that full credit could not be given for time already served.
27. By imposing a conditionally suspended term of imprisonment, I was required to impose on the appellant at least one of the primary requirements contained within s 84A, s 84B and s 84C (in addition the standard obligations pursuant to s 83) of the Sentencing Act.
28. Given the contents of the pre-sentence report, I considered it would likely benefit the appellant to be able to engage in one or more of the programmes identified in the report; particularly noting his counsel's submission that he did not have the opportunity to participate in any programme at all whilst he was in custody.
29. I therefore imposed a programme requirement contemplated by s 84A read with s 84(1)(a) of the Sentencing Act.

1. Corrective Services provided a supplementary pre-sentence report confirming the appellant's suitability for electronic monitoring.
2. In this connection, I note s 84CA(3A) was inserted into the Sentencing Act by the Family Violence Legislation Reform Act 2024 (WA) making electronic monitoring mandatory where a conditionally suspended imprisonment sentence is imposed in prescribed circumstances 'unless the court is satisfied there are exceptional circumstances': Sentencing Act, s 84CA(3C).
3. The appellant contended that s 84CA(3A) did not apply in the present case, whilst the respondent contended that it did.
4. According to counsel, there is currently a reserved decision of this Court in which it is expected the Court will construe s 84CA(3A) for the purposes of determining whether it applies in certain circumstances.
5. Irrespective of the fate of that appeal, it was in my view unnecessary to weigh into the construction debate.
6. I say this because assuming the respondent is correct that, properly construed, s 83CA(3A) is here engaged (about which I express no view), I was in any event comfortably satisfied that there were on the facts 'exceptional circumstances' which warranted a departure from any such requirement.
7. There is no restriction on the matters which can constitute exceptional circumstances.[79] As Gleeson CJ said of cognate expressions in Baker v R:[80]

There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.[81]

1. See also Murray J in Tieleman v The Queen:[82]

'Exceptional' is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.

...

I think it to be clear that what may constitute exceptional reasons will depend upon the facts of the particular case.[83]

1. Of course, in determining whether 'exceptional circumstances' are present one cannot lose sight of the evident primary purpose of s 84CA(3C) itself: protection of the safety and wellbeing of victims of domestic violence through the monitoring of perpetrators.
2. However, in this particular matter I was satisfied based on the material before me that there was no sensible risk of the appellant engaging in any further acts of domestic violence with respect to the victim.
3. First, as noted, the appellant had no prior conviction in any jurisdiction for violent offending of any description before his offending the subject of the present appeal.
4. Secondly, as is apparent from the pre-sentence report, there is no suggestion the appellant has, since his release on bail in February 2025, engaged in any behaviour in breach of the FVRO to which he is currently subject.
5. Indeed, as noted in the report, because the victim is currently living with the appellant's own mother the appellant 'no longer has contact with ... his mother, his son, or four of his siblings'.
6. Thirdly, and putting entirely to one side the significant adverse consequences for the appellant if he were to breach that FVRO, the fact remains that the appellant has also now endured some 2½ months in prison.
7. Evidently, this was the first time the appellant has served a custodial sentence.
8. It seemed likely to me that this fact alone, coupled with the harsh circumstances experienced by the appellant whilst in prison, would of itself serve as a more than sufficient deterrent against any future acts of domestic violence.
9. For the foregoing reasons, I concluded there were exceptional circumstances making this an appropriate case for the requirement for mandatory electronic monitoring (if applicable) to be dispensed with.

1. In circumstances where I upheld the appeal on Ground 4, and proceeded to resentence the appellant, it was unnecessary for me to determine Grounds 1 - 3.

1. For the foregoing reasons, I made the following orders on 3 July 2025:

1. The appellant be granted an extension of time within which to appeal. 2. Leave be granted to the appellant to amend his grounds of appeal in accordance with his application filed 12 March 2025. 3. The appellant be granted leave to appeal on [G]round 4. 4. The appeal be upheld. 5. The sentences imposed for each of [the chair incident], [the vaping incident], [the dish incident] and [the threat incident] be set aside. 6. The appellant be resentenced as follows:

(a) With respect to [the chair incident], a term of imprisonment of 2 months and 1 day (with the sentence on this charge to be the head sentence);
>
> (b) With respect to [the vaping incident], a term of imprisonment of 2 months;
>
> (c) With respect to [the dish incident], a term of imprisonment of 2 months; and
>
> (d) With respect to [the threat incident], a term of imprisonment of 2 months;
>
> (e) Each of the above sentences be served cumulatively save for the sentence [for the threat incident] which is to be served concurrently;
>
> (f) The total effective sentence of imprisonment of 6 months and 1 day be suspended: > > > (i) for a period of 12 months, effective today 3 July 2025; and
> >
> > (ii) subject to the following conditions:

(A) the standard conditions in s 83 of the Sentencing Act 1995 (WA); and

(B) a programme requirement as contemplated by s 84A read with s 84(1)(a) of the Sentencing Act 1995 (WA).

1. Should either party seek costs, they have liberty to apply within 14 days following delivery of the Court's written reasons.

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

[1] The transcript suggests a one-year FVRO had initially been imposed on the appellant on 23 July 2024, being some weeks after he had engaged in the offending of which he was convicted below.

[2] Criminal Appeals Act 2004 (WA) s 9(2).

[3] The State of Western Australia v Bolton [2024] WASCA 95 [44] quoting Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 193 [56].

[30] Appellant's written submissions [19]. See also ts 2 December 2024, page 5, which bears this out.

[32] Appellant's written submissions [22].

[33] Respondent's written submissions [12].

[35] Cf. Second Reading Speech, Extract from Hansard, Legislative Assembly 27.11.2019.

[36] Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell and Keane JJ); Harding v The State of Western Australia [2015] WASCA 27 [73] (Mazza JA, Hall J agreeing).

[37] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell and Pritchard JJA); Bradley v The State of Western Australia [2024] WASCA 94 [38] (Buss P, Mazza and Vandongen JJA); The State of Western Australia v DRN [2025] WASCA 45 [30] (Mitchell, Vaughan and Hall JJA); GLO v The King [2025] WASCA 49 [85] (Quinlan CJ, Mazza and Hall JJA).

[38] Kabambi v The State of Western Australia [21].

[39] Harding v The State of Western Australia [73] (Mazza JA, Hall J agreeing).

[40] Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10] (McLure P; Owen and

Wheeler JJA agreeing); Harding v The State of Western Australia [40] (Martin CJ), [73] (Mazza JA; Hall J agreeing).

[41] The State of Western Australia v Egeland [2018] WASCA 228 [44] (Buss P) citing at [45], by way of illustration, R v Allpass (1993) 72 A Crim R 561, 565-566 (Gleeson CJ, Hunt CJ at CL and McInerney J) and Yarran v The State of Western Australia [2017] WASCA 182 [6] (Buss P, Mazza and Mitchell JJA).

[42] House v R [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[43] Kentwell v R [42]; Harding v The State of Western Australia [74] (Mazza JA; Hall J agreeing).

[44] Harding v The State of Western Australia [74] (Mazza JA; Hall J agreeing).

[45] Kentwell v R [42]; Harding v The State of Western Australia [40] (Martin CJ); [73] (Mazza JA, Hall J agreeing).

[46] Harding v The State of Western Australia [40] (Martin CJ); [73] (Mazza JA; Hall J agreeing).

[47] Kentwell v R [42]; Harding v The State of Western Australia [74] (Mazza JA, Hall J agreeing).

[48] Harding v The State of Western Australia [75] (Mazza JA; Hall J agreeing) citing Teakle v The State of Western Australia [2007] WASCA 15; (2007) WAR 188 [73] (Buss JA).

[49] Harding v The State of Western Australia [75] (Mazza JA, Hall J agreeing) citing Teakle v The State of Western Australia [73] (Buss JA).

[50] s 298: 7 years' imprisonment in circumstances of aggravation (3 years if summary conviction) and a $36,000 fine, otherwise 5 years imprisonment (2 years if summary conviction) and a $24,000 fine; s 313(1)(a): 3 years' imprisonment and a $36,000 fine in circumstances of aggravation, otherwise 18 months and a $18,000 fine.

[53] Strahan v Brennan [2014] WASC 190 [89] - [90] (Martin CJ).

[54] Kentwell v R [42]; Harding v The State of Western Australia [74] (Mazza JA; Hall J agreeing).

[55] NSA v The State of Western Australia [2023] WASCA 53 [57] (Mazza JA), [99] and [109] (Beech JA), and [132] - [134] (Vaughan JA). See also, in the context of single judge appeals, CA Act, s 14(1)(d). See also Bogers v The State of Western Australia [2020] WASCA 174 [126] (Buss P, Mazza and Beech JJA);Gaskell v The State of Western Australia [2018] WASCA 8 [152] (Mazza and Beech JJA); YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell and Beech JJA); Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] - [29] (Hall J, McLure P and Mazza JA agreeing).

[56] O'Hara v The Queen [2021] WASCA 123 [45] (Buss P, Mazza and Beech JJA); NSA v The State of Western Australia [110] (Beech JA).

[57] Sentencing Act 1995 (WA) s 6(2).

[62] The State of Western Australia v Riley [2024] WASCA 11 [67] (Buss P, Mazza and Hall JJA).

[63] 2024 Inspection of Hakea Prison, 158, Office of the Inspector of Custodial Services Executive Summary, p iv.

[64] 2024 Inspection of Hakea Prison, 158, Office of the Inspector of Custodial Services Executive Summary, Executive Summary, p vi.

[65] Homola v Radwell [2018] WASC 177.

[66] Li v Skala [2018] WASC 353.

[67] Clarke v Cantatore [2019] WASC 385.

[68] Brown v Nation [2019] WASC 430.

[69] Malpuss v Giuffre [2020] WASC 303.

[70] Houghton v The State of Western Australia [No 2] [2022] WASCA 7.

[71] Mallard v Director of Public Prosecutions [2023] WASC 473.

[72] Caruana v Director of Public Prosecutions [2024] WASC 27.

[73] Appellant's submissions [26] - [34], [44]; Respondent's submissions [25] - [27], [32].

[74] Shi v The State of Western Australia [2020] WASCA 197 [39] - [42].

[75] Sentencing Act 1995 (WA) ss 6(4) and 39(3). See also Charlie v Director of Public Prosecutions for Western Australia [2022] WASC 199 [47] (Solomon J).

[76] Cf. Sentencing Act s 76(2).

[77] Cf. Sentencing Act s 39(2).

[78] Narkle v Hamilton [2008] WASCA 31 [30] - [31] (Steytler P, McLure and Buss JJA).

[79] James v The State of Western Australia [2013] WASC 235 (Edelman J).

[80] Baker v R [2004] HCA 45; (2004) 223 CLR 513.

[81] Baker v R [13]. Citations omitted.

[82] Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303.

[83] Tieleman v The Queen [15]. See also Steytler J [46], and Mazza J in Shrivastava v State of Western Australia [2010] WASCA 96 [28] - [30].