SMARTT -v- SLOANE [2019] WASC 35 (15 February 2019)

1. On each of the charges under the Restraining Orders Act, the appellant was sentenced to imprisonment for 6 months (reduced from 8 months for the early plea). On the stalking charge under the Criminal Code, he was also sentenced to imprisonment for 6 months, reduced from 8 months. The sentence for breach of the Bail Act was 4 months, which the magistrate reduced from 6 months.
2. The sentences for the earliest breach of the FVRO and for the stalking offence were ordered to be served cumulatively, with the other sentences concurrent. The effective sentence was imprisonment for 12 months, to be served immediately. The appellant was made eligible for parole.
3. No complaint is made about the individual sentences.
4. In sentencing, the magistrate made the following statements, none of which have been challenged:[3]

(1) the appellant's conduct was coercive and controlling and caused fear to his former partner;

(2) the breaches showed a desire on the part of the appellant to ignore repeatedly the court orders;

(3) the behaviour of the appellant was 'persistent and intimidatory', and was done with such frequency that it amounted to the pursuit of his former partner;

(4) the appellant did in fact intimidate her by his actions;

(4) the breaches were done in full knowledge that they were serious, as the appellant had been imprisoned before for breaches of orders.

1. His Honour was of the view that the offences were so serious that only imprisonment was appropriate. He expressly referred to the need for the sentence to 'send a message' to the person bound by a FVRO and others in the community, failure to obey violence restraining orders will be punished. The magistrate's comments reflect those of Miller J in Pillage v Coyne where his Honour said that 'the community must have confidence that restraining orders will be obeyed and complied with' and 'there must be significant consequences' when they are not.[4]
2. While no complaint was made about the magistrate's sentencing comments, he said that the appellant's behaviour 'amounted to the pursuit of your former partner and to intimidate her and you succeeded in doing so by your actions'.[5] Sentencing comments should not be read with an eye for error. But those remarks may suggest that his Honour found the appellant acted with intent to intimidate. The appellant was not charged with the more serious offence under s 338E(1), and should not be sentenced on the basis of an intent to intimidate.

1. The Act provides for Family Violence Restraining Orders in pt 1B. The objects of that Part are set out in s 10A:

(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 making the FVRO, the court must have been satisfied either that the appellant had committed family violence against his former partner and was likely to do so again, or that his former partner had reasonable grounds to apprehend that he would commit violence against her.[6]
2. 'Family violence' is a defined term, and includes any behaviour by the person that coerces or controls the family member or causes the member to be fearful.[7] Stalking is specifically said to be behaviour that may constitute family violence.[8] Stalking is also included in the definition of 'personal violence' in s 6.
3. When considering whether to make a FVRO and the terms of the order the court is required to have regard to a range of matters, set out in s 10F(1), 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. In making a FVRO, a court may impose such restraints on the lawful activities and behaviour of the respondent to the application as the court considers appropriate to prevent the respondent committing family violence against the person seeking to be protected, or behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.[9] Relevantly, the court may restrain a respondent from stalking the person seeking to be protected and from 'communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected'.[10]
2. Breach of an FVRO is an offence under s 61 (1) for which the offender is liable to a fine of $6,000 or imprisonment for 2 years or both.
3. The Parliament has addressed the problem of repeated breaches of restraining orders in s 61A. Where s 61A applies, a penalty must be imposed for the relevant offence 'that is or includes imprisonment' unless imprisonment would be clearly unjust and the person is unlikely to be a threat to the safety of the person protected of the community generally.[11] Section 61A was not referred to either in the court below or on appeal.

1. The offence of stalking is created under the Criminal Code s 338E. Under s 338E(2),

A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.

1. The terms 'intimidate' and 'pursue' are both defined in s 338D. Relevantly, intimidate includes to cause apprehension or fear. Pursue has an extended definition and includes:

(a) to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;

...

(e) whether or not repeatedly, to do any of the foregoing in breach of a restraining order or bail condition.

1. The penalty for stalking under s 338E(2) is imprisonment for 12 months and a fine of $12,000.

1. Schedule 1, pt D of the Bail Act provides for conditions which may be imposed on a grant of bail. Breach of a condition imposed under cl 2(2)(c) and (2)(d) of pt D is an offence for which an offender is liable to a fine not exceeding $10,000 or imprisonment for 3 years.[12]

1. These reasons are being given immediately, as the appellant is in custody. With the length of the sentence and the order that the appellant be eligible for parole it is important to resolve this appeal quickly.
2. The ground that a sentence is manifestly excessive asserts implied error, often described as imposing a sentence that falls outside the range of sentences which could have been imposed if proper principles had been applied.[13] It is necessary to examine the sentence imposed from the perspective of the maximum penalty for the offences, the standards of sentencing customarily observed with respect to the offences, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
3. In Dennis v Lanternier,[14] Jenkins J observed that there is no tariff for an offence against s 61(1) of the Restraining Orders Act given that the circumstances of the offending may range from a minor, or technical breach to a very serious breach involving personal violence. It has also been generally recognised that the Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence.[15] In Rogers v Hitchock, Hall J said:

Deliberate breaches of court orders or police orders made under the Act undermine the efficacy of such orders. Deterrence both personal and general must play a significant role when orders are breached. If those who are the subject of such orders believe that they can breach them without suffering any real consequence then there will be little incentive to be compliant. [16]

1. The appellant's breaches of the order cannot be described as minor or technical. While none of the appellant's breaches of the order had involved actual or threatened violence, the Act clearly intends to protect victims from other forms of coercive and harmful conduct and expressly recognises stalking as personal violence. The appellant had manifested his refusal to accept the authority of the order imposed for the protection of the victim. He breached it immediately, and then repeatedly.
2. A court should not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.[17] In the present circumstances, I am not satisfied that his Honour was wrong in ordering terms of imprisonment for the breaches.
3. The question is whether the term imposed for all of the offences was manifestly too long, so as to show an error in principle. I am satisfied that it is. The sentence imposed for stalking is half of the maximum. The seriousness of the offence lay in the frequent, repeated attempts to ring the victim, in breach of the restraining order. The undoubted seriousness of that conduct is reflected in the sentences of imprisonment that were imposed for the offences under the Restraining Order Act.
4. That is not to suggest that there should be no additional punishment for the stalking. The offence includes the additional element that the conduct could reasonably be expected to intimidate and did intimidate. But by imposing a sentence of 6 months and making it wholly cumulative, the magistrate has imposed a total sentence disproportionate to the total criminality of the conduct.
5. The appellant is 36 years old. He is a self-employed businessman. He has previous convictions for what, on the information available, appear to have been serious breaches of a VRO against the same victim, for which he was sentenced to imprisonment. Those offences were about nine years ago.
6. There was evidence before the magistrate that, in the months after his arrest, the appellant engaged help to assist him to deal with his problems over the separation from his former partner and children. He now appears to be using the correct channels, through the Family Court, to resolve issues relating to contact with his children.
7. I would allow the appeal and resentence. In my opinion, the sentence for the breach of s 338E(2) of the Criminal Code should be set aside and the appellant resentenced.
8. A cumulative sentence is appropriate to reflect the additional element of intimidation of the victim. There are several paths to achieving an appropriate total, including reduction of the stalking sentence and the sentence for breach of the FVRO, or making the sentence for stalking partly cumulative. In order to achieve an appropriate sentence overall, having regard to the whole of the appellant's conduct, I would reduce the sentence for stalking to imprisonment for 2 months, cumulative, so that the head sentence is 8 months. Were it not to be a cumulative, the sentence for stalking would be longer.
9. The appellant should be eligible for parole.
10. In my opinion the orders should be:

(1) The appellant is granted leave and the appeal is allowed.

(2) The sentence on PE 35273/18 is set aside and the appellant is sentenced to imprisonment for 2 months cumulative. The sentence on the remaining charges, and the date for commencement of the sentence, are not disturbed.

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

[4] Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27 [14].

[12] Bail Act s 51(2a) and (6).

[13] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].

[14] Dennis v Lanternier [No 2] [2017] WASC 5 [150].

[15] Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27[13]; Rogers v Hitchcock [2015] WASC 120 [46].

[16] Rogers v Hitchcock [2015] WASC 120 [46].

[17] Sentencing Act 1995 s 6(4).