MARICH -v- WA POLICE [2024] WASC 173 (7 May 2024)

1. For the charge of breach of a protective bail condition, the appellant was sentenced to 7 months' imprisonment. For the charge of breach of a family violence restraining order, the appellant was sentenced to 4 months' imprisonment. The sentences were ordered to be served concurrently, and suspended for a period of 6 months.
2. The appellant now appeals his sentence. An extension of time is required.

1. On 19 October 2023, the appellant was served with a family violence restraining order protecting the protected person. At the time of service of the order, its terms were explained to the appellant. The terms of the order included terms that the appellant must not:

(a) communicate or attempt to communicate with the protected person by whatever means;

(b) enter upon any premises where the protected person lives or works or is educated; and

(c) approach within 50 metres of the protected person.

1. The appellant was also subject to protective bail conditions which, among other conditions, required that he not contact the protected person by whatever means, and not enter the protected person's address.
2. On 21 January 2024 at 5.00 pm, the appellant was seen by police entering the protected person's address. The police attended the address and were greeted by the protected person at the front door. The police entered the premises and located the appellant in the lounge room within approximately 10 m of the complainant.
3. The appellant was arrested and taken to Collie Police Station. He declined an interview and said, 'I was just getting groceries for her'.[1]
4. At the time of the offence the appellant was also on an intensive supervision order, imposed on 13 December 2023, for an offence of burglary.

1. Counsel for the appellant explained that the appellant ran into the protected person at the shops and that she needed money for food. Counsel said the appellant decided to assist her with that and then help her walk the shopping home.
2. The charges for which the appellant was on bail were two charges of aggravated assault occasioning bodily harm, allegedly committed on 13 and 14 October 2023, and one charge of unlawfully impeding the breathing of another in circumstances of aggravation, allegedly committed on 18 October 2023. The complainant in each case was the protected person. Bail was granted on 15 December 2023 and those charges were listed for trial on 19 April 2024.
3. The prosecutor submitted that the appropriate sentencing disposition was imprisonment, although it was accepted that any such term could be suspended.[2]
4. Counsel for the appellant submitted that 'it sounds as if it was a breach that has been consented to by the protected person' and that the point had not been reached that imprisonment was appropriate. She submitted that a further order would be appropriate.[3]
5. Her Honour was informed that the appellant had failed to engage at all with authorities in relation to the intensive supervision order, and had not responded to telephone calls or home visits.[4]

HER HONOUR: All right, [appellant]. I'm going to let the intensive supervision order continue, because there's still some time on it, but you haven't engaged upon that order, and the court has given you - put you on that order, so it can - the Community Corrections can assist you. If you're not going to engage on that order, what's going to happen is they're going to bring you back again. So I am concerned about that, the fact that you haven't engaged. But I am going to allow that order to continue...

With respect to the other two charges, I am concerned about the fact that there's a trial listed for serious charges, on 19 April. She is a witness in that trial. And whether you were doing the Good Samaritan thing, taking food back to her house, whatever you were doing, you had a restraining order in place - whether she invited it - that you've chosen to breach. You were on an intensive supervision order that you've totally disregarded, and you were on protective bail conditions. In the circumstances, I do reach the point where the sentence of last option is open to me, because it's concerning me, interference of witness.

I know there's no suggestion that you've done that, but you were told to stay away from her. So what I'm going to do, with respect to that, to give you an incentive, I want you to re-engage on that intensive supervision order...

But what I'm going to do in the circumstances is suspend any term of imprisonment on those other two charges, and I'm going to impose seven months on the breach of protective bail conditions, four on the other. I'm making it concurrent, so they run together. And I'm going to suspend that for a period of six months. So what that means - what that means is you stay away from her and stay out of trouble for six months, and I would severely and - stress to you, you're on that intensive supervision order. You need to engage with Community Corrections, and you need to start doing what they want you to do. Because, frankly, if you don't, they're going to bring you back. And that's what you need to do, particularly in the circumstances where you've got that trial impending.

And what's concerning me is you've been on that - those protective bail conditions and also the restraining order has been in place, and yet it's close - getting close to the trial where she's going to be giving evidence, and you're allegedly taking shopping to her house and helping her out. So you need to stay away from her and also the - the young boy. Get the trial out of the way. Finish the intensive supervision order, and you haven't got a problem.[5]

1. The appellant has appealed his sentence on two grounds:
   1. The Learned Magistrate erred in law in failing to refer to the appellant's pleas of guilty made at the earliest opportunity and reduce the sentences of imprisonment imposed pursuant to s 9AA of the Sentencing Act 1995 (WA), thereby constituting a miscarriage of justice.
   2. The Learned Magistrate erred in imposing sentences of imprisonment (albeit suspended) when the seriousness of the offending was not such that only sentences of imprisonment were appropriate, resulting in a sentence that was manifestly excessive.

Particulars

2.1 The objective level of seriousness involved in the offences for which the appellant was sentenced.

2.2 The Appellant's pleas of guilty being entered at the earliest reasonable opportunity.

2.3 Sentences imposed in broadly comparable cases.

1. The appellant relies on the affidavit of Derek Scott Hunter sworn on 21 March 2024 in support of the application to extend time.
2. The delay has been adequately explained and there is no prejudice to the respondent in the event that the extension is granted. I propose to deal with that application at the conclusion of my reasons.

1. The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[6]
2. Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of appeal has a reasonable prospect of succeeding,[7] meaning that the ground is required to have a rational and logical prospect of succeeding.[8] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[9]
3. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[10]

1. Section 9AA(2) of the Sentencing Act 1995 (WA) provides that, where a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State and to any victim of or witness to the offence resulting from the plea.
2. The maximum discount that may be imposed for a plea entered at the first reasonable opportunity is 25%. The judicial officer has a discretion as to the discount to be afforded, even if the plea is found to have been entered at the first reasonable opportunity.
3. The head sentence for an offence means the sentence that a court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[11]
4. An early plea of guilty will, in all but the most exceptional of cases, result in a reduction of the sentence which would have been imposed.[12]
5. Section 9AA(5) requires that if a court reduces the head sentence, the court must state that fact and the extent of the reduction in open court.
6. A failure to refer to the effect of a plea of guilty is ordinarily an indication that a sentencing judge or magistrate has overlooked the plea and has failed to take the plea of guilty into account in determining the sentence to be imposed.[13]
7. A failure to comply with s 9AA(5) will constitute an error of law. However, such an error may not necessarily amount to a material error resulting in a substantial miscarriage of justice and the appeal against the sentence being allowed.[14] The learned magistrate may have determined no discount was appropriate or a discount was given but no specific reference to the discount was made.[15]
8. In considering a ground of appeal alleging that a sentencing magistrate failed to take a relevant sentencing consideration into account it is important for the magistrate's sentencing remarks to be read as a whole, in context and with regard to the busy workload of the Magistrates Court, and not with an eye finely tuned for error.[16]
9. The appellant submitted that he pleaded guilty at the first reasonable opportunity.[17] However, in sentencing the appellant, the learned magistrate did not refer to the plea of guilty, nor state any reduction of the head sentence for that plea of guilty. The appellant therefore contends that the learned magistrate erred at law.
10. I am satisfied that error has been demonstrated in this case. A fair reading of her Honour's comments does not reveal a likelihood that the learned magistrate simply omitted to mention a factor which had been taken into account. The early plea of guilty was not mentioned by either the appellant's counsel or the prosecutor, and it appears to have been overshadowed by other features of the matter, including the appellant's failure to engage with his intensive supervision order.
11. The respondent submitted that, notwithstanding that the ground of appeal had been made out, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred. I will return to this question after considering ground 2.

1. The general principles governing appeals against sentence, which is an implied error on the basis that an individual sentence is manifestly excessive, are well-established[18] and need not be repeated.

1. The maximum penalty for the offence of breach of a protective bail condition is a fine of $10,000 or imprisonment for 3 years or both.[19]
2. The maximum penalty for the offence of breach of a family violence restraining order is a fine of $10,000 or imprisonment for 2 years or both.[20]

1. Protective bail conditions are made under cl 2 of pt D of sch 1 of the Bail Act. A judicial officer or authorised officer may impose conditions as to the accused's conduct while on bail if they consider it is desirable for any purpose mentioned in subclause (2).[21] Any condition may be imposed to ensure that the accused:[22]

(c) does not endanger the safety, welfare or property of any person; or

(d) does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

1. Family violence restraining orders are made under pt 1B of the Restraining Orders Act. The objects of that Part are as follows:[23]

(a) to maximise the safety of persons who have experienced, or are at risk of, family violence;

(b) to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;

(c) to protect the wellbeing of children by preventing them from being subjected or exposed to family violence;

(d) to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;

(e) to make perpetrators of family violence accountable to the court for contraventions of court-imposed restrictions designed to prevent them from committing further family violence.

1. In granting a family violence restraining order, the court must have been satisfied in this case that either the appellant had committed family violence against the victim and was likely to do so again, or that the victim had reasonable grounds to apprehend that he would commit violence against her.[24]
2. 'Family violence' is defined in the Restraining Orders Act and includes violence or threat of violence by a person towards a family member or any behaviour by the person that coerces or controls the family member or causes the member to be fearful.[25]
3. Under s 10F(1) of the Restraining Orders Act, the court is required to have regard to a range of matters when considering whether to make a family violence restraining order and the terms of the order, including:

(a) the need to ensure that the person seeking to be protected is protected from family violence;

(b) the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.

1. The imposition of the protective bail conditions and the grant of a family violence restraining order in this case are clear indications that the court regarded the appellant to be a risk to the safety and welfare of the protected person, from which risk she required protection.
2. The alleged offences for which the appellant was placed on the protective bail conditions are assault occasioning bodily harm and unlawfully impeding the breathing of another. Inherent in these charges are the allegation that the violence caused injury, but also that the conduct alleged carried with it a significant risk of serious injury or even fatality. It is from those risks which the orders were designed to protect the protected person.
3. It is paramount in the case of orders of this kind that offenders understand that disobedience of them will result in serious consequences. People for whose protection such orders are made must be able to have confidence that those orders will be obeyed and complied with.
4. Any failure on the part of a defendant to observe a restraining order is likely to generate in the victim genuine fear of further breaches.[26] It is unacceptable that, even where a person has sought assistance and protection from family violence, they would continue to feel unsafe after the police have acted and the court has granted that protection.
5. As a result, general and specific deterrence are of particular importance in sentencing for breaches of orders of this kind.
6. Recent publicity has highlighted the community's concern about the fact that too often, protective court orders are not regarded by alleged perpetrators of family violence with the seriousness they deserve. I am conscious of not being overwhelmed by that publicity, but it is also important to take note of valid community concerns about proper sentencing standards for offending of this kind.
7. The need for specific deterrence was highlighted in this case by the fact that the appellant had previously breached orders of this kind on a number of previous occasions. An offender should not and must not be punished for past offending, but their response to past sentences can inform the court as to the sentence which is necessary to deter them in the future. In this case, the need for the appellant to appreciate the seriousness of court orders was only emphasised by the fact that he had wholly failed to engage with an intensive supervision order imposed on him just six weeks prior to the offences, albeit for different offending.
8. The appellant submits the offending is at the lower end of the scale of seriousness for offences of these types as:

(1) the offences involved the appellant being a 'good Samaritan';[27] and

(2) the acts constituting the offending were at the complainant's request.[28]

1. There was no evidence before this court in regard to the protected person's attitude towards the offending behaviour. Any such aid or enabling behaviour on the part of the protected person cannot be considered a mitigating factor for the purposes of the Sentencing Act unless the protected person initiated the contact and no conduct of the appellant constituted family violence.[29]
2. Both of those factors were not made out in this case and thus no mitigating factor applies.
3. In my view, the submissions on the part of the appellant minimise the seriousness of his conduct. The appellant appears to have seen the protected person while she was doing her shopping, and rather than leaving or at least moving away, he chose to interact with her and then go home with her and enter her home. Even in the absence of outward protest or, indeed, even with apparent consent, there is no way that the appellant could have known or reasonably believed that the protected person was in a position to exercise her free will at any point during the interaction.
4. Whether the appellant had sufficient insight or not, his conduct would have made it extremely clear to the protected person that, if he chose to do so, the appellant could still enter her home and be close enough to her to inflict violence upon her if he so desired. As such, far from being a 'good Samaritan', the appellant's conduct demonstrated a complete disregard of the orders of the court and the protected person's rights.
5. The appellant's conduct also risked interfering with the primary witness in the appellant's pending trial for serious offences of family violence. It is difficult to accept that the appellant was not trying to ingratiate himself with the protected person in some way. I do not, however, regard this as an aggravating feature. It is sufficient to note that, even if not intended, there is always the prospect that the conduct could have impacted on the protected person's perception of her position as a witness against him.

1. The appellant was 42 years old at the time of his sentencing.
2. The appellant has an extensive criminal history mainly consisting of stealing, burglary, driving and drug offences. His criminal history shows a number of convictions for driving under licence suspension or disqualification. He has been convicted of breaching a community based order on three occasions, and common assault on three occasions.
3. Of particular relevance, the appellant has prior convictions, resulting in fines, for:

(a) breach of bail conditions in 2020 and 2004;

(b) two breaches of protective bail conditions in 2018;

(c) two breaches of family violence restraining order or violence restraining order in 2018.

1. Overall, the appellant's criminal history demonstrates a total disregard for authority and orders of the court over many years.

1. In relation to both offences of breach of protective bail conditions and breach of family violence restraining order, the circumstances under which a breach may occur can vary significantly. It is not possible to discern a customary range of sentences and such offences have attracted terms of imprisonment, community based orders and fines.[30] Even so, other comparable cases may be useful as providing a reference point for ensuring broad consistency in sentencing.[31]
2. I have reviewed a number of cases, including Hamlett v Whitney,[32] Neach v Hobbs,[33] Edgill v Maguire,[34] Rogers v Hitchcock,[35] Wallam v Grosveld,[36] Briggs v Houlihan,[37] Stockley v Bailey,[38] Dennis v Lanternier[39] and the cases cited therein, as well as the schedule produced by the respondent summarising cases involving a breach of protective bail conditions.
3. As the appellant acknowledges, in a number of those cases, the outcome of the appeal was impacted by the fact that the appellant had spent time in custody awaiting sentence or appeal. Further, there are very wide variations in the circumstances of the offending and the personal circumstances of the appellant involved.
4. Manifest excess is not established by reference to one or even a few comparators, particularly without reference to aggravating or mitigating features.
5. While I acknowledge the circumstances of the offending in the cases cited to me, none are truly comparable to the circumstances of this case.
6. It is of limited assistance to evaluate only the circumstances of the alleged offending in any particular case, classifying it as either more or less serious than the conduct in this particular case, and thereby establishing that the sentence in this case should have been more or less than in that case.
7. In my view, the sentence in this case, while severe, was within the sound exercise of her Honour's discretion. In isolation, the appellant's conduct might be seen as being at the lower end of the scale. However, when regard is had to the reasons for the protective orders, the length of time since they had been imposed, the protracted nature of the breaches, and the fact that they involved entering the protected person's home, the appellant's response to previous orders of the court, and the need for general and specific deterrence, the point had been reached at which imprisonment was the only appropriate disposition open.
8. In my view, the sentence was not unreasonable or plainly unjust.
9. Ground 2 fails.

1. Ground 1 having been made out, I must consider whether a substantial miscarriage of justice has occurred.
2. The question of whether a substantial miscarriage has occurred can be resolved by considering whether the error could not have made a difference to the sentence imposed. If the answer is yes, then the appeal may be dismissed. If the answer is no, the appellate court should consider the sentencing discretion afresh. If the appellate court would not impose a lesser penalty, then no substantial miscarriage of justice has occurred, and the court may dismiss the appeal.[40]
3. Ultimately, I am not satisfied that the error on the part of the learned magistrate could not have made a difference to the sentence imposed. Accordingly, it is necessary for me to exercise the sentencing discretion afresh in order to determine whether no different penalty would be imposed.
4. The appellant was invited to make submissions in relation to the resentencing. The appellant's personal circumstances were outlined by the appellant's counsel and I proceeded as if resentencing before determining the appeal.

Sentencing Act s 11

1. While I consider that there is substantial overlap between the offences am conscious of the need to avoid double punishment, there are two separate orders, each creating their own obligations upon the appellant, and thus s 11 of the Sentencing Act does not apply.

1. You are 43 years old. You were born in Perth and you have lived your life in Western Australia, a large majority of it in Collie and surrounds where your family still reside. You have been steadily employed throughout your life. You have five children ranging from mid‑teens to 24, and, to your credit, you have regular contact with them all.
2. Despite rather significant relationship difficulties with your former partner and the mother of four of the children, which also included breaches of a family violence restraining order in 2018, which I am told involved mutual drug use, you now have an amicable relationship with that partner.
3. You have been methylamphetamine free since you was released from custody after having been imprisoned in 2020 for possession of methylamphetamine with intent to sell or supply.
4. Your parents are ageing and your mother has recently been very unwell, and I have no doubt that she could use your support rather than you being in custody.
5. I am also told that you have been in custody since 14 February 2024 for further offences of breaching the protective bail condition and breaching the family violence restraining order. While you are absolutely not to be sentenced for either of those offences today, they highlight and underline the concerns that I expressed earlier in the course of my reasons as to the need to specifically deter you to emphasise the seriousness of these orders. They can no longer be treated by you as optional.
6. I am of the view that your plea of guilty, having been made in circumstances where the prosecution case was overwhelming in the sense that the police located you in the protected person's home, merits a discount of 20% on the total effective sentence.

1. Having regard to the circumstances of this case, I do not consider that any different sentence should be passed. Accordingly, I am satisfied that there has been no substantial miscarriage of justice.
2. The appeal is therefore dismissed.

(1) The application for an extension of time is granted.

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

[1] Transcript, WA Police v Lee Marich, Magistrates Court of Western Australia, 22 January 2024, 3 (ts 22 January 2024).

[5] Transcript, WA Police v Lee Marich, Magistrates Court of Western Australia, 22 January 2024, 2 - 3 (ts 22 January 2024 Sentencing Remarks).

[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[11] Sentencing Act s 9AA.

[12] Moody v French [2008] WASCA 67; (2008) 36 WAR 393; (2008) 50 MVR 322 [35].

[13] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151.

[14] CA Act s 14(2); Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502 [59]; Schulz v Coyne [2019] WASC 329 [30].

[15] Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502 [56] - [60].

[16] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].

[17] Appellant's written submissions dated 19 April 2024 [15] (Appellant's submissions).

[18] Kabambi v The State of Western Australia [2019] WASCA 44 [21]; Cluett v The Queen [2019] WASCA 111; Eldridge v The State of Western Australia [2020] WASCA 66 [22].

[19] Bail Act s 51(6).

[21] Bail Act sch 1 pt D cl 2(1).

[22] Bail Act sch 1 pt D cl 2(2).

[26] See Pillage v Coyne [2000] WASCA 135 [13] - [14].

[30] Neach v Hobbs [2021] WASC 135 [31]; Edgill v Maguire [2013] WASC 472 [14].

[31] Sabau v The State of Western Australia [2010] WASCA 3; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; (2010) 272 ALR 465; (2010) 85 ALJR 195; (2010) 204 A Crim R 434; (2010) 78 ATR 11.

[32] Hamlett v Whitney [2013] WASC 100.

[33] Neach v Hobbs [2021] WASC 135.

[34] Edgill v Maguire [2013] WASC 472.

[35] Rogers v Hitchcock [2015] WASC 120.

[36] Wallam v Grosveld [2015] WASC 145; (2015) A Crim R 317.

[37] Briggs v Houlihan [2018] WASC 301.

[38] Stockley v Bailey [2020] WASC 193.

[39] Dennis v Lanternier [No 2] [2017] WASC 5.

[40] Crocker v Vinicombe [2019] WASC 416 [42] ‑ [60]; Neach v Hobbs [2021] WASC 135 [17] ‑ [22].