File No : BU 6798 of 2008, BU 6799 of 2008, BU 6800 of 2008, BU 6801 of 2008

Criminal law and sentencing - Continued breaches of VRO - Unlawful damage - Whether imprisonment appropriate

Royer v State of Western Australia [2009] WASCA 139

1 McKECHNIE J: In the early morning of 30 November 2008, Mr Bastin went to the place where his former partner was living. He walked across her front lawn and smashed three windows of her new partner's car before leaving. A couple of hours later, still in the early morning, he phoned her saying, 'You're a slut and I'm going to get you.' Some time on the next day he rang her again, saying, 'Something is going to happen.'

2 Although when interviewed by police he denied doing any of these things, he pleaded guilty on 12 May 2009 to breaching a violence restraining order three times and unlawful damage. He had breached restraining orders before and had also convictions for obstructing police and threats to harm, threatening behaviour and criminal damage, together with road traffic offences.

3 The magistrate thought these offences were serious. He was right. When he said, 'When the court makes a restraining order, it is intended that the person will comply otherwise the whole process will be weakened, ... and those seeking the protection of the court will lose confidence in the processes of justice', the magistrate was correct. The magistrate also correctly identified the need for deterrence, both general and, in this case, personal

4 And so it was that Mr Bastin was sentenced to a total of 14 months' imprisonment, 10 months for the first offence, 4 months for each other offence, with the last offence, the breach of the restraining order, to be served cumulatively. The offences arose substantially out of the same matter but the attack on the motor vehicle and the damage was an attack which was on a different legally protected interest and was separate in both type and nature, even though it arose at the same time. Had I been structuring the sentence, I might have made that sentence cumulative instead, but it is of no moment because the end result is the same.

5 The ground of appeal is that that sentence of 14 months is manifestly excessive.

6 Mr McKenzie in his written and oral submissions has pointed to errors that he says has resulted in an excessive sentence. Wisely and appropriately, he does not at this stage seek to persuade me that a suspended sentence or some other disposition ought to have been imposed. Clearly, an unsuspended sentence of imprisonment was fairly open.

7 There are four particulars of the ground. There is no evidence on ground (b) and it is not pressed. The other three are:

• the appellant's plea of guilty,
• the commencement of an anger management course by the appellant and the development of a positive, and
• working relationship with the complainant in relation to their joint parenting.

8 It is common ground that the appellant's plea of guilty was not expressly mentioned by the magistrate. Mr McKenzie points out that while the second two were taken into account by the magistrate in deciding whether or not to suspend the sentence, they do not appear to have been taken into account in determining the length of the sentence.

9 The plea and then the sentence followed each other. I do not consider the proceedings can be so neatly divided in the way contended. Sentencing is a process of bringing many strands together and mentioning those which are important at some stage. Clearly the magistrate considered those matters and the particulars. The fact that he did not structure his sentencing remarks to put them in at the point when he was announcing the length does not, in the circumstances, indicate that he failed to take them generally into account.

10 As to the actual ground, I do not in any event regard the sentence on the whole as manifestly excessive. Even if there was some substance to Mr McKenzie's argument as to the particulars, the sentence nevertheless is an entirely appropriate one. The magistrate did mention the particulars and they were clearly in his mind in what was a relatively brief sentencing process and he did not fall into error.

11 As to the mention of the plea of guilty, a plea of guilty must generally result in some form of mitigation of sentence. That is because s 8(2) of the Sentencing Act 1995 (WA) says so. The failure to mention it is not of itself an appellable error: see Royer v State of Western Australia [2009] WASCA 139 at [59], though the failure to take the plea of guilty into account is an appellable error.

12 Having regard to all of the facts and reviewing all of the material that was before the magistrate and the available maximum penalties, I consider that the magistrate must have had regard to the plea of guilty. Certainly he was aware of it; it had happened only a few minutes before. He is an experienced magistrate (not that that is necessarily a judicial putty to fill in the cracks in reasons) and the sentence itself, taking into account to the circumstances and the behaviour, clearly indicates that there was some moderation by taking into account the plea of guilty. The sentences, both in their structure and result, were within the range of a sound sentencing discretion.