Supreme Court of WA|2009-06-22|Before: Simmonds J, Magistrate P

SAKKERS -v- THORNTON [2009] WASC 175 (22 June 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SAKKERS -v- THORNTON [2009] WASC 175

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : PE 58697 of 2008, PE 58698 of 2008, PE 58699 of 2008, PE 58700 of 2008, PE 58701 of 2008, PE 58702 of 2008, PE 58703 of 2008, PE 58704 of 2008, PE 58705 of 2008, PE 58706 of 2008, PE 58707 of 2008, PE 58708 of 2008, PE 58709 of 2008, PE 58710 of 2008, PE 58711 of 2008, PE 58712 of 2008

Criminal law and procedure - Sentencing - Appeal against sentences by magistrate on charges of aggravated stalking, breaches of restraining order and aggravated possession of firearm - Sentencing on offence where evidence necessary to establish commission of that offence also necessary to establish commission of another offence on which offender also sentenced - Whether error in relation to totality principle - Whether double punishment - Whether individual sentences manifestly excessive - Whether failure properly to approach sentencing at the maximum penalty in a court of summary jurisdiction - Whether error in approaching matter of suspended sentence

Sentences for breaches of restraining order quashed

Anglesey v The Queen [2002] WASCA 194

Bosworth v State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Carr v State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Evans v Vanderheide [2001] WASCA 352

Furber v The Queen [2008] WASCA 233

Gilmour v The State of Western Australia [2008] WASCA 42

Hellings v The Queen [2003] WASCA 208

Luckman v Leucas [2001] WASCA 57

Owens v The Queen (Unreported, WASCA, Library No 980326, 17 June 1998)

R v Tait and Bartley (1979) 24 ALR 473

Sweeney v Corporate Security Group [2003] SASC 324

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

The State of Western Australia v BLM [2009] WASCA 88

Woods v The Queen (1994) 19 WAR 341

1 This is an appeal on a number of grounds against sentence imposed by a magistrate for a number of offences. The respondent has conceded that one of the grounds should be upheld, with consequential effects for the appeal on some of the other grounds. The result would be a reduction in the overall sentence imposed. However, a number of grounds of appeal remain in issue.

2 I begin by outlining the circumstances which gave rise to the appeal, before setting out the grounds of appeal, and considering each of them.

3 The final section of these reasons is my conclusions and orders.

The circumstances giving rise to the appeal

4 On 3 December 2008, after hearings on sentence on 10 and 12 November 2008 as well as 3 December 2008, the appellant was sentenced on his pleas of guilty to the following 16 charges. The sentences were ones of immediate imprisonment except for two of the charges, where the learned magistrate imposed fines. The total sentence of imprisonment was backdated to allow for time spent in custody on the relevant charges.

5 In each case of a sentence of imprisonment, the sentence was arrived at by reducing the sentence by one-third under the transitional period regime then in effect, and further by a discount for a plea of guilty.

6 On one charge of aggravated stalking contrary to Criminal Code (WA) (Code) s 338E(1)(a), the appellant was sentenced to a term of 12 months immediate imprisonment with parole eligibility.

7 On 12 charges of breach of a violence restraining order each contrary to Restraining Orders Act 1997 (WA) s 61(1), the appellant was sentenced to 12 months immediate imprisonment 'globally', cumulative on the sentence of 12 months imprisonment for the aggravated stalking.

8 On one charge of being in possession of a firearm in circumstances of aggravation, whilst not being the holder of a licence or permit under the Firearms Act 1973 (WA) (Firearms Act) entitling him to do so and not being a person exempted under Firearms Act s 8 or s 19(1aa), contrary to Firearms Act s 19(1)(c), the appellant was sentenced to a term of imprisonment of 7 months and 2 weeks, cumulative on the other sentences.

9 On one charge of knowingly possessing ammunition, without being the holder of the requisite licence or permit for such ammunition and not being a person exempted under Firearms Act s 8, contrary to Firearms Act s 19(1), the appellant was sentenced to a $400 fine.

10 Finally, on one charge of being the person in physical possession or having custody or control of a firearm and ammunition who failed to take all reasonable precautions to ensure its safekeeping, contrary to Firearms Act s 23(9)(a), the appellant was sentenced to a further $400 fine.

11 The appeal is against the sentences of imprisonment only.

12 These were described by the prosecutor at the sentencing hearing on 10 December 2008 as follows (ts 2 - 3):

In relation to the stalking charge, the accused and the complainant in this matter were previously involved in a three-year relationship which ended approximately 11 weeks prior to these offences. That was at the request of the complainant. Since the dissolution of the relationship the accused continually sent emails and text messages to the complainant. Due to the ongoing attempts by the accused to communicate with the complainant, she changed her mobile contact numbers on several occasions and also requested her employer place a filter on her work email address in order to prevent the email messages sent by the accused from reaching her.

As a result of the unwanted communications, the complainant applied for and successfully obtained a violence restraining order in the perhaps Magistrates Court on 9 September 2008. That restraining order was served on the accused on 12 September 2008 and the conditions were explained to him. One of the conditions imposed on the accused is that he shall not communicate or attempt to communicate by whatever means with the person protected. The accused, knowing those conditions of the restraining order, deliberately and maliciously, with the intention of causing fear to the complainant, has undertaken to create an email address enabling him to breach an email filter set in place by the complainant's employer to prevent his emails reaching her.

Having created the email address between September 25 and 29 he proceeded to forward the complainant emails. The emails suggested that the accused intended on killing the complainant, that she should prepare to die and that he knew what her movements were telling her to say goodbye to her loved ones and a number of other personal and deliberate threats. Each of those emails was forwarded for the express purpose of causing the complainant to fear for her life.

The accused also posted comments on the chat room face book indicating his desire and intention to kill a female person which could be readily identified as a threat towards the complainant. The complainant is in fear of her life, she's unable to attend work, finds it difficult to sleep and is having to undertake efforts to conceal her whereabouts by moving to new addresses. On Tuesday, September 30 2008, investigators arrested the accused near his Belmont home and later conducted a search of his home address where an unloaded single-barrel shotgun with five rounds of ammunition were located.

The accused was interviewed in relation to those emails and readily made admissions to having sent them with the intention of causing her fear. He further made admissions that he had been repeatedly attempting to contact the complainant by phone in order to discuss this situation. Your Honour, the firearm - that was located during the police search. It was in a black sports bag in the lounge room. A search of the black bag located a cardboard box with a 12-gauge shotgun inside.

Also inside the cardboard box were five rounds of 12-gauge ammunition. The accused is disqualified from holding a firearms licence or permit due to the violence restraining order. He did not have an approved storage device for the shotgun or ammunition. The accused was spoken to and admitted the firearm and ammunition were his, stating that he bought them last week. He said it was for protection and to kill himself. And the breaches of the VRO - your Honour, they relate to those emails that were sent. I have 10 of them there, but I don't have 12. I will hand them up.

13 In respect of the prosecutor's reference to the accused's disqualification from holding a firearms licence or permit, I note Firearms Act s 27A, which reads as follows:

27A. Disqualification by court imposing restraining order

(1) A court making a violence restraining order against a person may order that, for a term set by the court or until a court orders to the contrary, the person be disqualified from holding any licence, permit, or approval, or any particular licence, permit, or approval, under this Act.

14 I also note Restraining Orders Act 1997 (WA) (RO Act) s 14(1), which reads as follows:

14. Firearms order

(1) Subject to subsection (5), every violence restraining order includes a restraint prohibiting the person who is bound by the order from -

(a) being in possession of a firearm or firearms licence; and

(b) obtaining a firearms licence.

15 It is not clear to me which of these provisions accounted for the prosecutor's reference, although in my view it is more likely to have been the first. In any event, as I will note, the restraint in RO Act s 14(1)(a) appears to have been of some significance to the learned magistrate in his sentencing.

16 Such a disqualification is a circumstance which renders the disqualified person who commits an offence under s 19(1)(c) of the Firearms Act liable under s 19(1ac) to a higher penalty (7 years imprisonment) on indictment than if there was no disqualification (where under s 19(1ad) the maximum penalty is 5 years imprisonment). However, such a disqualification does not render the disqualified person to any higher a maximum penalty as a summary conviction penalty (under both subsections, 3 years imprisonment or a fine of $12,000).

17 By orders dated 26 February 2009 made by his Honour McKechnie J leave to appeal was granted on the following grounds:

1. (1) The sentences imposed for the breaches of restraining order charges should have been made concurrent with the sentence in the stalking charge as both charges involved the same acts by the offender.

(2) The sentences imposed on these charges offended Section 11 of the Sentencing Act.

The learned sentencing Magistrate erred by failing to have any or any adequate regard to the totality principle.

The Magistrate failed to have regard to whether the totality of the sentences imposed was appropriate to the overall criminality of the offending.
The Magistrate should have made a final assessment of the ultimate effective head sentence to ensure that it was not excessive having regard to all the circumstances of the case.

In failing to do so the Magistrate erred in law.

The individual terms of imprisonment were manifestly excessive in all the circumstances, having regard to:

(1) The circumstances of the offences;

(2) The offender's antecedents;

(3) The offender's plea of guilty;

(4) The offender's support within his family and in the community;

(5) The limited risk of re-offending as set out in the pre-sentence and psychological report;

(6) Sentences usually imposed for offences of this type.

The learned sentencing Magistrate erred in considering that the maximum available summary jurisdiction penalty of two years imprisonment was appropriate on the stalking charge.

The offences were by electronic communication and involved no physical presence by the offender at or around the complainant's home or work places.
The maximum penalty was not an appropriate starting point for the offences which were factually not in the worst category of offending of this type.

The offences occurred over a comparatively short period of time and terminated before the police intervened.

By selecting the maximum possible statutory penalty as the starting point before application of any discounts the Magistrate was in error.

The learned sentencing Magistrate erred in fixing the discount for a plea of guilty at one quarter on the stalking and firearms charges and one third on the breach of restraining order charges.

There was no reason why a discount of one third for the guilty pleas should not have applied across the board on all charges.
The sentences where a one-quarter discount was allowed should be adjusted by allowing a one-third discount.

The learned sentencing Magistrate erred in his reasoning as to why a suspended sentence should not have been imposed and erred by imposing a sentence of immediate imprisonment.

The offender was already being held in custody and the learned Magistrate imposed a sentence of immediate imprisonment as a method of effecting the continuing protection of the complainant.
The complainant could adequately have been protected by a non-custodial sentence such as a sentence of conditional suspended imprisonment.

In imposing a sentence of immediate imprisonment primarily on the basis of ensuring the continuing safety of the complainant the Magistrate fell into error.

The learned sentencing Magistrate erred in finding that

(1) The Appellant was a continuing danger to the victim, and

(2) that significant damage has been done to the complainant as a result of the offending

both findings being contrary to the evidence or not established on the evidence before the Court.

The proposition that the offender was a continuing danger to the complainant was contrary to the findings in the pre-sentence report and the psychological report.
The finding was not reasonably open on the evidence before the Court.

The learned sentencing Magistrate's summation that the offender may have been 'one step away from killing the girl' was erroneous and unsupported by the evidence.

The evidence was to the effect that the offender wanted to scare the complainant into phoning him or having lunch with him, rather than indicating any firm intention to hurt her.
By imposing sentence on the basis that the case was almost analogous to cases where complainants had in the past been killed or injured by an offender breaching a restraining order the Magistrate fell into error.

The learned sentencing Magistrate erred by calculating the ultimate head sentence on the stalking charge at 10 months.

The deduction of one third for a plea of guilty and one quarter for a plea of guilty results in a sentence of 10 months.
Depending on the outcome of the other grounds of appeal, the sentence of 12 months on this charge should be replaced by a sentence of 10 months.

19 The respondent concedes this ground is made out, at least in respect of ground A 1(2). This is undoubtedly correct.

20 Sentencing Act 1995 (WA) s 11(1) provides as follows:

11. Person not to be sentenced twice on same evidence

(1) If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

21 See also Owens v The Queen (Unreported, WASCA, Library No 980326, 17 June 1998) Murray J, 10 - 11.

22 Here the offence of aggravated stalking was constituted by the course of conduct whose constituents were the 12 breaches of the violence restraining order.

23 The sentences for the 12 breaches of violence restraining order, globally, are the same as the sentence for the aggravated stalking. As counsel for the respondent indicated, and as counsel for the appellant agreed, the effect of upholding the appeal on this ground, assuming no other ground is upheld, should be that there be no penalty for the 12 breaches of the violence restraining order.

24 The result would be to lower the total sentence from 31 months and 2 weeks to 19 months and 2 weeks.

25 Counsel for the respondent indicated that it should be the sentences for the breaches of the restraining orders offences that are set aside. The sentence for the stalking offence should stand, as that offence subsumed all of the factual circumstances the subject of the breaches of the violence restraining orders, and also other matters. Reference was made to the Facebook entries referred to in the prosecutor's recital of the circumstances of the offending, above. I did not understand counsel for the appellant to disagree. I consider that treatment of the offences to be the appropriate one.

26 It follows I would uphold the present ground of appeal in the respect indicated in the previous paragraph.

27 It was not in contest that the totality principle should be applied having regard to the upholding of the previous ground.

28 Nor was it in contest that the totality principle requires a sentencing officer to evaluate the total sentence to be imposed to see that it is a just and appropriate measure of the total criminality involved, and that the sentence does not represent the imposition on the offender of a 'crushing sentence', where '[t]he word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release': see Carr v State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA).

29 The appellant's submissions in relation to this ground were that a total sentence of 19 months and 2 weeks was not a just and appropriate measure of the total criminality involved in the offending for which the sentencing was being carried out, and was in any event a crushing sentence.

30 It is not in contest that the application of the totality principle involves the total sentence being reviewed to see that it bears a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Bosworth v State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, 18 (McLure JA), referring to Woods v The Queen (1994) 19 WAR 341, 352 (Anderson J); see also Bosworth [2] (Steytler P).

31 There is clear authority that the penalties by way of fines imposed together with a sentence or sentences of imprisonment for other offences should be weighed in the application of the totality principle: see Furber v The Queen [2008] WASCA 233 [73] (Murray AJA), [1] (Buss JA) and [2] (Miller JA) agreeing. Here, however, neither party laid any emphasis on the fines imposed or the offences for which they were imposed, other than a reference by the respondent to the possession of the ammunition as a matter to be considered, as I understood him, together with the possession of the firearm. However, it was not made clear to me that that possession should affect the total effective sentence of imprisonment in this case.

32 It is not entirely evident to me that the learned magistrate in fact considered the application of the totality principle in this case. There is in his lengthy and detailed reasons for sentence (3 December 2008, ts 14 - 22) no reference to it, or to the two considerations it calls for the sentencing officer to bear in mind. The learned magistrate did approach the sentences for the twelve breaches of the restraining orders 'globally', apparently on the basis that some of the individual sentences should be served 'cumulatively' on one another (ts 22). Further, as I have indicated, he made the global sentence cumulative on each of the sentences of imprisonment, which he made cumulative on one another. However, while cumulativeness determinations are a way in which the conclusions of the application of the totality principle may be given effect to, such determinations do not necessarily indicate any such conclusions have been arrived at. That is because questions of cumulativeness or concurrency may be approached at least twice, including once before the application of the totality principle. See The State of Western Australia v BLM [2009] WASCA 88, [108] - [111] (Buss JA, who was in the minority, but whose statement of sentencing principle in this respect was not disagreed with by any of the other members of the court), referring to The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, [54], [55] (Steytler P).

33 At the same time, it seems to me that, notwithstanding the length and detail of the learned magistrate's sentencing remarks, I should not readily conclude that he failed to address his mind to the totality principle. This is having regard to his remarks as to a global sentence for the breaches of the violence restraining order, and other matters of cumulativeness, considered using the approach to the reasons of sentencing officers in the position of the sentencing magistrate expressed in the terms often quoted from Nevermann (1989) 43 A Crim R 347, 350 (Malcolm CJ): see for example those terms' quotation in Evans v Vanderheide [2001] WASCA 352 [13] (Miller J).

34 Nor in my view do I have any reason, from the length of the total effective sentence of imprisonment to consider the totality principle was not applied. This of course assumes that the sentences for the individual offences from which it was made up were not manifestly excessive, having regard to criminality of those offences, and the appellant's personal circumstances, a matter to which I will return under the ground of appeal in that regard, below.

35 The appellant laid particular emphasis in relation to the present ground on the basis this case was primarily, in the submissions for him, a stalking case, that the events occurred over a short period of time and there was never any personal contact or actual violence.

36 I leave aside the last two matters (as to no personal contact or actual violence), as they go to the manifest excessiveness or otherwise of the individual sentences.

37 Counsel for the appellant confirmed that the first two matters were not a submission that the firearms offending was part of the same transaction as the stalking offending within the meaning of the 'one transaction' rule, a statement of which recently quoted with approval in BLM [109] (Buss JA) is to be found in Amoore [55] (Steytler P).

38 Counsel for the appellant conceded it was open to his Honour to make the sentence for the firearms offence cumulative on that for the stalking offence as he did. I understood this concession was on the basis of the very different character of the legal interests protected by the criminalisation of the two forms of offending conduct.

39 Rather, counsel for the appellant put it to me, the submission that this was primarily a stalking case was one that there was an overlap in the criminality in the two offences which his Honour had failed to recognise or account for in any totality assessment he had made. That overlap lay in the element in each of a breach or breaches of the violence restraining order which of course was the circumstance of aggravation in relation to the stalking offence.

40 That there was such an overlap cannot be doubted. Further, I am satisfied his Honour treated the element of breaches of the violence restraining order as important in his consideration of the sentences he imposed for both offences. As to the aggravated stalking offence, I note his Honour's reference in his sentencing remarks (3 December 2008, ts 20) to the courts being 'very familiar with the stalker causing actual physical harm to the victim', with this being 'demonstrated' by a 'recent murder' of a mother by her 'estranged partner' who also had 'a violence restraint order against them'. As to the firearms offence, I note his Honour's reference (ts 21) to the appellant having 'purchased a shotgun and ammunition when he was prohibited from doing so by the violence restraint order', which I took to be a reference to the restraint in RO Act s 14(1)(a), although that restraint is of being in possession of a firearm rather than purchasing one. Finally, there was also a reference in his Honour's sentencing remarks (ts 21), in connection with the court giving the victim 'protection' and 'peace of mind', both 'for a considerable amount of time', to the fact a 'court order by nature of the violence restraint order didn't stop him and so clearly now more than a court order is required'. This reference was made in relation to his Honour's imposition of a sentence of imprisonment, apparently for each of the offences for which that was his sentence, and I return to the passages in his sentencing remarks in which that reference appears below in connection with another ground of appeal.

41 However, in my view it does not follow from his Honour's treatment of the element of breaches of the violence restraining order as I have indicated that the learned Magistrate failed to take account of the need to consider whether or not the total effective sentence was disproportionate to the criminality involved or crushing, and if necessary to adjust the individual sentences he imposed.

42 The submission to the contrary is in my view to be approached as one that the learned Magistrate failed to attend to the possibility of double punishment.

43 Undoubtedly his Honour did not address the matter of double punishment expressly (compare the sentencing decision considered in the aggravated stalking case of Anglesey v The Queen [2002] WASCA 194 [16], Murray J).

44 However, the avoidance of double punishment is a fundamental sentencing consideration. It is one which an appellate court reviewing the decision of a sentencing magistrate ought not to conclude that the magistrate omitted to attend to simply because there was no express reference to it in his or her sentencing decision: see Nevermann 350.

45 The quoted passages from his Honour's sentencing remarks do not, it seems to me, take the matter further so as to suggest his Honour was not alive to the risk of double punishment. Rather, those passages indicate that his Honour was concerned to identify the seriousness of the offending before him, in terms of the need for personal deterrence in each case, a matter to which I return below in relation to another ground of appeal.

46 Nor it seems to me has it been shown that the individual sentences for the aggravated stalking offence and the firearms offence indicate that his Honour was punishing the appellant twice, at least in part, for acting as he did in breach of the violence restraining order. In particular, I note, as I do again below in respect of another ground of appeal, that the individual sentences represent different assessments of the relative seriousness of the forms of offending in question, with the aggravated stalking appearing in his Honour's assessment of it as relatively more serious as an offence of its type than the firearms offence.

47 Finally, it has not otherwise been shown to me that the total effective sentence, without the sentences for the breaches of restraining order, is not a just and appropriate measure of the total criminality involved, or that that sentence represented the imposition on the offender of a 'crushing sentence'. In particular, in relation to the measure of criminality involved, I note the matters I reach in relation to the next ground as to the seriousness of the two forms of offending, allowing for the personal circumstance of the offender; and I also note the different legal interests those forms of offending relate to, which as I have indicated counsel for the appellant conceded made it appropriate to have their sentences cumulative on one another. In relation to the matter of a crushing sentence, I note that there is nothing in the pre-sentence report or the psychological report, or in the total effective sentence of imprisonment, to suggest, in my view, that a custodial disposition of this order would cause the destruction of any reasonable expectation of useful life after release.

Ground C: individual sentences manifestly excessive

49 The principles to be applied in relation to the present ground are well established.

50 A convenient general statement of those principles is in R v Tait and Bartley (1979) 24 ALR 473, 476 (Fed Ct, Full Ct, Brennan, Deane and Gallop JJ) as follows:

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336-40 at 339; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 15 ALR 1-17 at 15).

51 See also House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519 - 520 (Dixon, Evatt and McTiernan JJ).

52 In respect of the matter of a sentence 'so excessive or inadequate as to manifest such an error' (Tait 476), it is accepted that such a sentence is one that falls 'outside the range of a sound exercise of sentencing discretion': Furber [46] (Murray AJA); see also [1] (Buss JA) and [2] (Miller JA).

53 The appellant's submissions were directed to the sentences for aggravated stalking and the firearms offences. I put aside the sentences for breaches of the restraining order, as I have already indicated those sentences cannot stand.

54 I turn now to consider the matters in the particulars of the present ground.

55 The appellant's circumstances in the respects as described in the particulars are indeed favourable. However, I must note there is something of a contrast in the authors' assessments of aspects of those circumstances between the pre-sentence report and the psychological report which in my view qualifies that assessment.

56 The appellant was, as counsel for the appellant pointed out, not an older man, being 28 years old at the time of the offending. However, I do not take anything significant from this - it is not apparent to me that the appellant should be treated as a young offender. Neither of the reports I have referred to so considered him for the purposes of their analyses and the contrary was not put to me.

57 The appellant had a relatively modest criminal record. While not a first offender, his record showed no offences of a kind involving violence or the threat of violence, being all traffic offences. This is except for offences of criminal damage, damage, stealing and stealing a motor vehicle, for all of which he was sentenced on the same day in 1999; and the offence of disorderly conduct (obscene language), for which he was sentenced in 2005 to a fine. The most serious of the traffic offences appears to have been dangerous driving for which he was sentenced in 2004 to a community based order including a community service order and licence disqualification.

58 The appellant's record of convictions (as opposed to an absence of convictions) goes of course not to the seriousness of the offending but to the weight to be given to the mitigatory matters that might otherwise be put for him: see Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 [71] (Roberts-Smith J).

59 Here the appellant had an unremarkable family history and a stable family situation. There are indications he had always been in regular employment in the period leading up to his remand in custody.

60 Further, the appellant had pleaded guilty, at what must be taken as the first reasonable opportunity.

61 The approach that should be taken to such fast track pleas is well known, and was recently restated in Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure and Buss JJA), referring to, among other authorities, Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339:

Ordinarily, in this State, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances: H [9] and the cases there cited. In particular cases the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more, although a reduction should not be so excessive as to undermine the accusatorial feature of the criminal justice system: R v Shannon (1979) 21 SASR 442, 449 (King CJ); and Cameron [65(3)] (Kirby J). The amount of the reduction is discretionary. Sentencing judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. In Cameron [65(2)] Kirby J said:

'Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations (cf Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Ryan v The Queen (2001) 206 CLR 267 at 278 [33]). Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances.'

62 In this case, there were expressions of remorse and acceptance of responsibility by the appellant to the author of the psychological report which appeared as quotations in that report (p 2). At the same time that author notes (also at p 2) immediately after those quotations that the appellant 'attempted to neutralise his behaviours by stating that "it was only over that long weekend", "there had been a lot of alcohol", and that he "didn't mean to scare her'''. In addition, the author of the pre-sentence report records her view that the appellant 'showed little insight into his actions, and expressed minimal victim empathy' (page 1). Her report indicates, as I will indicate below, that that view influenced her failure to recommend a community based order in his case.

63 The matter of the limited risk of re-offending referred to in the particulars is only directly addressed in the psychological report. Its author assesses the 'risk of re-offending in a similar manner' as 'relatively low' (page 4). This was 'given no apparent history of stalking, domestic violence or violence and aggressive behaviour towards other, regardless of whether he was under the influence of alcohol or not'. This is followed by the author's statement that the appellant 'has strong family support and he is gainfully employed'.

64 The author of the pre-sentence report does not address the matter of the risk of re-offending in terms at all. However, I note the following from that report, in relation to a community based sanction (page 4):

Of concern is Mr Sakkers' lack of victim empathy and insight into the offences. It appears that Mr Sakkers has agreed to comply with a community-based sanction to avoid a custodial penalty, and therefore his motivation to comply with requirements upon release is questionable. As such, such an Order cannot be recommended at this time.

65 I conclude that the favourable circumstances of the appellant as described in the particulars of the present ground need to be understood with significant qualifications.

66 The appellant was not in a position where he had to receive credit for his plea of guilty at the top of the range indicated in Moody, as the learned magistrate appeared to recognise (though with what seems to be a slip in his final addition, 3 December 2008, ts 22), and as counsel for the appellant conceded.

67 Further, it is not apparent to me that, notwithstanding the assessment in the psychological report, the matter of personal deterrence is reduced to insignificance in this case, particularly in view of the nature of the element of the offending represented by breaches of the violence restraining orders and the passage from the pre-sentence report just quoted.

68 It is also necessary, as both counsel accepted, to take account of the circumstances of the offending, and the range of sentences usually imposed for offending of this type.

69 The offending in the case of the aggravated stalking occurred, as the appellant pointed out, over a relatively short time frame and without any form of physical contact or physical proximity. Nor was that offending a part of a pattern of escalating conduct.

70 Matters of those kinds were recognised as relevant to sentencing for the offence of aggravated stalking in Gilmour v The State of Western Australia [2008] WASCA 42. That was a case cited to me by counsel for the appellant where a sentence of 4 years immediate imprisonment imposed in the District Court following a conviction after a trial was upheld in respect of an aggravated stalking offence involving circumstances of aggravation including but not limited to breaches of a violence restraining order. The offending consisted in a pattern of escalating behaviour over a period of some two months, including following the victim after an acquaintance had obtained a violence restraining order against him and after the offender had been warned to desist, and also including visits to her property recorded on a security camera, one of which visits involved the offender being in a gorilla mask bearing a knife. I further note that, although the offender in Gilmour was treated as a first offender ([11], Wheeler JA, Buss and Miller J A agreeing), this was seen to be 'effectively all that is to be said in the appellant's favour' ([13]), while even that matter 'could have limited weight in the circumstances, having regard to the apparent absence of any remorse and the clear need for personal, as well as general, deterrence' ([16]). There was no 'absence of any remorse' in this case, and at least on the psychological report less need for personal deterrence.

71 However, the offending in this case, unlike the offending in Gilmour, involved direct and express threats which the accused had sent by email from an address he had arranged to avoid the victim's filter; and the emails, as the circumstances of the offending quoted above indicated, in terms not objected to by counsel for the offender, were 'for the express purpose' of causing the victim to 'fear for her life' (10 November 2008, ts 2). The language of the sample of eight of the emails reproduced in his Honour's sentencing remarks (3 December 2008, ts 16 - 17) in my view amply warranted the learned Magistrate's characterisation of that language as 'suggesting his intention to kill her and she should prepare to die'. And of course the sentence in this case was, adjusted to 2 years, to remove the transitional period reduction and reduction for the plea of guilty, significantly less than that in Gilmour.

72 Counsel for the respondent referred me to a number of authorities in relation to sentencing for aggravated stalking. They were Hellings v The Queen [2003] WASCA 208 (6 1/2 years imprisonment following conviction after trial; offence involving 'bombardment' of telephone calls over a 22 day period; 41-year-old offender, lengthy criminal history; little insight or empathy); Anglesey (2 year sentence after plea of guilty; offender squirted blood from a syringe into the face of the complainant in her bedroom in a house she was occupying with her children); and Luckman v Leucas [2001] WASCA 57 (prosecution appeal from sentence by a magistrate on a plea of guilty where circumstance of aggravation was breach of bail; court indicated at [31] that 'offence falls within the category of the worst of its kind'; sentence increased from 12 months to 18 months; court indicated at [31] that it considered sentence of 2 years 'well warranted' but was mindful of the constraints on a prosecution appeal; plea of guilty; 960 telephone calls over a period of some 3 1/2 months including some to dissuade complainant from testifying in other proceedings against offender; criminal record including incidents of domestic violence and breaches of a violence restraining order; no remorse, little insight into behaviour, little or no ability or apparent desire to control aggression and violence and unlikely to benefit from any therapeutic work).

73 Counsel for the appellant put to me I should note that the appeals in all of these cases - with the apparent exception, on which he did not address me, of Luckman - were appeals from sentencings in the District Court. It was not made clear to me why that fact, in view of the authorities on the approach to the maximum penalty for an offence in sentencings in courts of summary jurisdiction, should influence my consideration of the sentences in those cases as sentences usually imposed for offences of the aggravated stalking type.

74 It seems to me that Luckman was clearly a case warranting a longer sentence of imprisonment than the present one. However, it does not seem to me that Luckman with its language of 'well warranted' should be taken to indicate that at the time of that decision only circumstances of equivalent seriousness would have warranted a 2 year term under the sentencing regime in force then. Further, I consider Gilmour indicates some firming up in sentences for aggravated stalking since Luckman.

75 When Luckman is considered with all of the other authorities referred to, particularly Gilmour, it seems to me that the sentence for the aggravated stalking in this case was within, if at the top of, the range of sentences usually imposed for sentences of the aggravated stalking type.

76 I turn then to the aggravated firearms offence. No authorities on sentencing for this offence were cited to me, nor was I able to find any such authorities.

77 Approaching the matter as one where the maximum penalty for the offence was 7 years but with a summary jurisdiction limit of 3 years (Firearms Act s 19(1ac)), and in the manner the authorities I consider below indicate the sentencing magistrate should have approached that maximum penalty, it is not apparent to me that the sentence for the aggravated firearms offence is manifestly excessive. I note in particular that the sentence for the aggravated firearms offence was a significantly smaller proportion of its maximum prison sentence than the sentence for the aggravated stalking offence was of its maximum prison sentence.

78 It follows I would not uphold the present ground.

79 I took this ground of appeal to relate to the aggravated stalking offence. The maximum penalty for the offence, under Code s 338E(1)(a), was 8 years imprisonment but with a maximum summary conviction penalty of 2 years. The maximum summary conviction penalty of imprisonment for the firearms offence was, as I have just indicated, 3 years.

80 Counsel for the appellant accepted that the proper approach in a court of summary jurisdiction to a penalty structure of that kind is that it is the maximum penalty on indictment that is to be considered as the maximum penalty for the offence, not the penalty which represents the limit in a court of summary jurisdiction: Evans [19] (Miller J) and authorities referred to there. In accordance with that approach, it would be an error for a sentencing officer in a court of summary jurisdiction to approach the matter of sentencing at the summary conviction limit as an exercise of discretion reserved for a case in the worst category of offending of the relevant type. Rather, on Evans, sentencing in a court of summary jurisdiction at that limit would be for cases in which a sentencing officer saw the appropriate exercise of sentencing discretion to be that level of punishment.

81 However, counsel for the appellant contended, as I understood him, that the learned magistrate, while of course recognising the jurisdictional limit on the maximum term of imprisonment he could impose, ought in determining the appropriate penalty to have had regard to the fact the sentencing was being conducted in a court of summary jurisdiction, which should have indicated to his Honour that the case before him was likely to fall within the range of cases for which the maximum in that court was appropriate. This entailed, as I understood the contention, that the learned magistrate should, if he was considering the imposition of a sentence at the jurisdictional limit in his court, have considered whether or not the case before him was in the worst category of offending of this type likely to be encountered in such a court. Here, he should have concluded that the case before him was not in that category.

82 I note that the learned magistrate recognised he was sentencing for the present offence at the 'maximum penalty available to me summarily' (3 December 2008, ts 22), before applying the transitional period discount and a discount for the plea of guilty. There is no indication he separately considered whether or not the case before him was in the worst category of offending of this type likely to be encountered in a summary jurisdiction court.

83 However, I am unable to agree that the learned magistrate was in error in sentencing as he did without that separate consideration.

84 The contention of counsel for the appellant does not it seems to me sit comfortably with the power of a court to remove the sentencing into a superior court under Code s 5(9) where the court 'considers that any sentence the court could impose on the accused for the offence would not be commensurate with seriousness of the offence'. This allows for the possibility a sentencing might occur in that court at the summary jurisdiction limit, or even above that limit in circumstances where the court had not determined beforehand it was appropriate to remove the sentencing.

85 More fundamentally, in my view the contention cannot sit with Evans or basic sentencing principle. It seems to me that in accordance with that authority and that principle, sentencing in a summary jurisdiction court at the limit in that jurisdiction would be for cases which a sentencing officer saw to be appropriate for the exercise of sentencing discretion at that level of punishment. A separate consideration of whether or not the case fell within the worst category of offending of this type in such a court would not be called for and, in light of Code s 5(9), might be misleading.

86 It follows I would not uphold the present ground.

87 Counsel for the appellant indicated to me that this ground was not maintained. I will therefore say nothing more of it.

88 It was not strongly contended before me that the learned Magistrate had failed properly to consider penalties other than sentences of imprisonment for the aggravated stalking and the firearms offence. In view of express references in his sentencing remarks to fines and community based orders (3 December 2008, ts 21), and the material on which he drew in not choosing any of those options, it seems to me such a contention would have failed.

89 Further, it was not contended that the learned magistrate had failed to consider at all the possibility of suspending the sentences for those offences.

90 Rather, as I understood the submissions of counsel for the appellant in relation to the present ground, it was contended that the learned magistrate had failed to give proper consideration to the possibility of suspending the imprisonment. This failure consisted in his failure to address properly the deterrent effect of suspended sentences.

91 To understand the submission, and the argument addressed to me on it, I need to set out the following from his Honour's sentencing remarks (3 December 2008, ts 21 - 22):

There is now a community expectation that the courts will provide protection to victims such as the girl in this case. In recent times our society has become alert to the curse of domestic violence and it now demands that police and the courts provide women and children with effective protection from violent, threatening partners or ex-partners.

Let it not be forgotten that in this case the victim, due to her concern at the defendant's behaviour, sought and obtained a violence restraint order against him. Mr Sakkers did not desist from his threatening behaviour on service of the restraint order on him and we saw the extent of the emails and the contents of the emails that were sent to the girl even after he was put on the violence restraint order.

This is a very serious case where Mr Sakkers threatened to kill his partner - ex-partner - in terms that were very specific and explicit. He also purchased a shotgun and ammunition when he was prohibited from doing so by the violence restraint order. We don't know how far away but he may well have just been one step away from killing this girl.

This girl is entitled to look to this court to give her protection and peace of mind for a considerable amount of time. A court order by nature of the violence restraint order didn't stop him and so clearly now more than a court order is required. A deterrent sentence, both specific and general, is needed to show that this threatening and intimidating behaviour will not be tolerated and will result in lengthy prison sentences.

Young females and females generally must be allowed to freely move in and out of relationships without fear of retribution of any nature from a disappointed ex-partner. Having come to the conclusion that a prison sentence is in my opinion the only appropriate penalty I am required to turn my attention to the prospect of that sentence being suspended.

In coming to that conclusion I have read the reports. I listened to Mr Love's submissions today. I have read those references but I do not propose to suspend the sentence. A suspended sentence will not be a sufficient deterrence to Mr Sakkers and also it will not provide the victim with the protection she is entitled to. I propose to make Mr Sakkers eligible for parole so that on completion of the appropriate deterrent period in custody and the programmatic intervention his reintegration into society can be monitored (ts 21 - 22).

92 It is evident from this portion of his Honour's remarks that, in not suspending the sentences of imprisonment, he particularly bore in mind considerations of personal deterrence and protection of the victim.

93 However, I have no reason to consider his Honour did not also bear in mind the other matters that, by virtue of authorities such as Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, he was required to consider. Those other matters would include, of course, general deterrence. General deterrence is a matter to which the remarks preceding those specifically addressed to suspending imprisonment referred.

94 Further, his Honour's remarks in relation to suspending the sentences of imprisonment indicate to me he did not allow his belief as to the community's expectations of proper punishment to restrict the exercise of his sentencing discretion by causing him not to take into account the appellant's personal circumstances. I note his references to the 'reports' (by which I understood him to refer to the pre-sentence and psychological reports), the 'references' (which I understood to refer to certain references for the appellant handed up at the hearing before his Honour) and 'Mr Love's submissions' (those of the appellant's counsel before him).

95 Of course, had his Honour allowed his belief to as to the community's expectations of proper punishment to operate to restrict that exercise of his sentencing discretion, including in relation to suspending imprisonment, he would have been acting contrary to the proper approach to sentencing referred to in James (1985) 14 A Crim R 364 (FC WA), 368 (Wallace J). Counsel for the appellant drew this authority to my attention, although in connection with ground C above rather than the present ground. However, that authority's relevance is it seems to me to the present ground, not to ground C. In any event, it was not shown to me that the learned magistrate had committed the error to which that portion of James is addressed.

96 However, counsel for the appellant strongly put to me that in weighing the option of suspending imprisonment, his Honour had in substance adopted the position that the suspension of imprisonment was not appropriate in a serious case, which this undoubtedly was. In any event, counsel submitted, his Honour had failed to give real recognition to the principle that a suspended sentence of imprisonment has real deterrent weight, particularly at the level of special or personal deterrence.

97 I accept that a suspended sentence may indeed be appropriate in a serious case meriting a term of imprisonment for a significant period, as the decision in Dinsdale indicates. However, I do not see in his Honour's reasons or his conclusions a failure to appreciate that a suspended sentence might indeed be appropriate even in a case like that before him.

98 I also accept that the authorities support the principle that a suspended sentence of imprisonment has real deterrent weight, particularly at the level of special or personal deterrence. See the discussion of the matter of suspended sentences and general deterrence in the authority cited to me by counsel for the appellant, Sweeney v Corporate Security Group [2003] SASC 324 [90] - [109] (Perry J), which also includes the conclusion that a suspended sentence is 'a "real punishment" vis a vis the defendant' ([99]). See also LexisNexis, Criminal Law in Western Australia (28 May 2009) [SA s 76.9].

99 However, I do not see in his Honour's reasons or conclusions a failure to give real recognition to the principle that a suspended sentence might have real deterrent weight for the appellant. His Honour's reference to his concern that a 'suspended sentence will not be a sufficient deterrence to Mr Sakkers and also it will not provide the victim with the protection she is entitled to' rather indicates to me his Honour concluded that a suspended sentence would not have sufficient weight as personal deterrence in this case.

100 Further, it seems to me that, notwithstanding the matters in the particulars to this ground, that the appellant had already been in custody awaiting determination of his case at the time of his sentencing, and that conditions on a suspended sentence might have been imposed to address aspects of his circumstances, it has not been shown to me his Honour could not reasonably come to the conclusion he did. I note the violence restraining order, to which as has been seen his Honour referred as a court order that 'didn't stop him'. I also note the concern in the pre sentence report about the appellant's motivation to comply with community-based requirements upon release previously quoted which, while not addressed to a conditional suspended imprisonment order, was in my view one that might reasonably have aroused a concern about the degree of the effectiveness of such an order as a personal deterrent.

101 It follows I would not uphold the present ground.

Ground G: findings contrary to the evidence

102 Counsel for the appellant at the hearing conceded the learned magistrate had not found the appellant was a continuing danger to the victim, which was that part of the present ground to which I took the ground's particulars to relate. I consider that concession was properly made. The learned magistrate's sentencing remarks (3 December 2008 ts 21 - 22) quoted above, which were the only relevant sentencing remarks, were in my view comments on matters at the time of the offending made in part at least because of the need for personal deterrence they pointed to.

103 Counsel for the appellant at the hearing also noted that the passage as to the impact of the offending on the victim in his Honour's sentencing remarks (3 December 2008, ts 16) is a close paraphrase of the corresponding passage on that impact in the prosecution's statement of the circumstances of the offending (10 November 2008, ts 3). That passage is included in the quotation of that prosecution statement above, being the sentence beginning 'The complainant is in fear of her life'. I am not able to see on what basis exception might be taken to the corresponding passage in his Honour's sentencing remarks. I was not taken to any indications that the defence had before his Honour taken issue with the passage in the prosecution statement his Honour there closely paraphrased. I found none, although I note that the defence did seek to put certain matters relating to the offending's impact on the victim before his Honour. I return to this shortly. I also note there was a victim impact statement which the prosecution had provided, with parts of which the defence had indicated to his Honour they had 'difficulties' (10 November 2008, ts 3 - 5; 12 November 2008, ts 2 - 3, 5). However, his Honour had indicated he had not read the victim impact statement and would take no account of it (12 November 2008, ts 3; 3 December 2008, ts 3, 7). Nor was it suggested to me that the statement by the prosecutor had incorporated any part of the victim impact statement with which the defence had its difficulties.

104 I have noted that there was an exchange between the defence and his Honour concerning certain matters which the defence proposed to put to his Honour which it was said went to the impact of the offending on the victim.

105 Counsel for the appellant noted that counsel for the appellant who appeared before the learned magistrate, Mr Love, referred in his submissions to this matter as 'some printouts' from the victim's 'Facebook' space. Those printouts, Mr Love had said, contained text which referred to activities she had been undertaking since the incident, and which 'do suggest' that the victim has been 'living a normal satisfactory life' since the violence restraining order was taken out and 'since these offences were charged' (3 December 2008, ts 6). Mr Love also said of those text passages as he introduced them to the learned magistrate that 'most of them are very cryptic, so it's possibly not fair to read too much into them'. His Honour made no reference to these matters in his sentencing remarks.

106 However, I also note that the conclusion to the exchange between Mr Love and the learned magistrate on the Facebook material was this (3 December 2008, ts 7), beginning with Mr Love:

I don't know whether the complainant has removed some of her entries on Facebook or not, and maybe it seems cleaner now than it once did, but that is simply the value of those downloads so if your Honour doesn't feel it's fair to the prosecution to consider those, having not considered the VIS, then I won't hold them up for sentencing purposes.

HIS HONOUR: All right. Okay

LOVE, MR: I simply suggest that it is evidence of the fact that the complainant has not suffered long-term harm as might be suggested. (emphasis added)

107 Counsel for the appellant, after having his attention drawn to that conclusion, although not the emphasised words, conceded that the learned magistrate had not erred in finding as he had as to the impact of the offending on the victim notwithstanding that exchange. I consider that concession was rightly made even allowing for the emphasised words. It seems to me that counsel for the appellant before the learned magistrate had withdrawn the printouts from consideration. Furthermore, as Mr Love had indicated both in his introductory remarks about the printouts that I have quoted, and in his remarks at the conclusion to the exchange with his Honour that I have also quoted, there were matters of context and meaning to be considered in assessing the significance of the text passages in the printouts. There was no indication in the transcript before me there had been any opportunity for his Honour with the benefit of submissions from both parties to undertake that consideration.

108 It follows that, to the extent the present ground is not withdrawn, I would not uphold it.

109 Counsel for the appellant indicated to me that this ground was not maintained. I will therefore say nothing more of it.

110 I have not upheld any of the grounds of appeal except the first.

111 It follows I would allow the appeal to the extent that I would quash the sentences for the breaches of the restraining order. The effect of that would be, as I earlier indicated, to reduce the length of the term of imprisonment to be served by the appellant from 31 months 2 weeks to 19 months 2 weeks.

112 I will hear from the parties as to the final form of the orders to be made to give effect to these conclusions.

SAKKERS -v- THORNTON [2009] WASC 175 (22 June 2009)

At a glance

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Judgment (178 paragraphs)

SAKKERS -v- THORNTON [2009] WASC 175 (22 June 2009)

Legislation Cited (1)

Cases Cited (16)