THOMPSON -v- WA POLICE [2024] WASC 476 (13 December 2024)

1. The sole ground of appeal is that the sentence imposed infringed the first limb of the totality principle as it did not bear a proper relationship to the overall criminality of Mr Thompson's conduct, having regard to all the relevant circumstances, including those referable to Mr Thompson personally.
2. For the reasons set out below, I do not consider that the sentence infringes the first limb of the totality principle.

1. The facts of this matter were not in dispute before the magistrate nor before this court. The below summary is taken from the parties' written submissions and the underlying source documents.
2. Mr Thompson and the protected person were together for 20 years, married in 2014 and have two children born in 2015 and 2018. They separated and have not resided together since December 2022.
3. On 26 January 2023, Mr Thompson was served with an interim FVRO. The interim FVRO stipulated, relevantly, that Mr Thompson must not communicate or attempt to communicate with the protected person by any means; behave in an intimidatory, offensive or emotionally abusive manner towards the protected person; and harass the protected person by any electronic means. However, the interim FVRO also provided that Mr Thompson would not breach the interim FVRO if he communicated with the protected person by email, SMS, text message or by any other written electronic means solely to make arrangements to spend time with or communicate with any child or children of the protected person and himself. The interim FVRO was served on Mr Thompson on 26 January 2023 and came into force on that day.
4. In February 2023, Mr Thompson committed seven breaches of the interim FVRO contrary to s 61(1) of the RO Act. Mr Thompson was charged with these offences on 13 March 2023. Mr Thompson pleaded guilty to those charges on 1 May 2023 and was sentenced on the same day to a fine and granted spent conviction orders in relation to each charge.
5. On 13 March 2023, Mr Thompson signed a Bail Undertaking Form 6 pursuant to cl 2(2) of pt D of sch 1 of the Bail Act. The bail condition stipulated that Mr Thompson would 'abide by all conditions of any Family Violence Restraining Order for as long as it remains in force' (the Protective Bail Condition).
6. On 8 May 2023, Mr Thompson consented to and was served with a conduct agreement order, being an order made under s 10H and s 43 of the RO Act. The conduct agreement order came into force on 8 May 2023 for a duration of 18 months. The conduct agreement order contained the same relevant terms as the interim FVRO. A conduct agreement order is not a FVRO, but is taken to be a FVRO for the purposes of the RO Act.[1] I will refer to the conduct agreement order as a FVRO for the purposes of these reasons.
7. After this date, Mr Thompson was charged with three further tranches of offences. Mr Thompson ultimately pleaded guilty to 114 charges, and some were dismissed for want of prosecution or were withdrawn. Mr Thompson was sentenced in relation to all of these offences on 1 August 2024.
8. The various offences are as follows (excluding those that were dismissed for want of prosecution or otherwise withdrawn):

(1) Charges PE 24316/2023 - PE 24374/2023: On 13 May 2023, Mr Thompson was charged with 50 counts of breaching the FVRO and nine counts of breaching the Protective Bail Condition between 21 February 2023 and 8 May 2023. Mr Thompson originally pleaded not guilty to these charges, and they were listed for trial in December 2023. That trial was adjourned, and Mr Thompson pleaded guilty to these charges on the adjourned trial date, being 29 April 2024.

(2) Charges PE 3467/2024 - PE 3516/2024: On 18 January 2024, Mr Thompson was charged with 49 counts of breaching the FVRO between 9 May 2023 and 30 November 2024. Mr Thompson pleaded guilty to these charges on 19 July 2024.

(3) Charges MH3350/2024 - MH 3355/2024: On 2 July 2024, Mr Thompson was charged with six counts of breaching the FVRO between 22 December 2023 and 4 April 2024. Mr Thompson pleaded guilty to these charges on 19 July 2024.

1. Annexure 1 to these reasons is a schedule of charges.
2. Mr Thompson was sentenced in relation to all charges on 1 August 2024.

1. The statement of facts for the first tranche of offences was heard on 29 April 2024, with the remaining facts being read on 1 August 2024. The facts were accepted by Mr Thompson.
2. Each of the prosecution notices concern a single date on which the offending behaviour occurred. However, on some of those dates Mr Thompson sent more than one communication.
3. Mr Thompson breached the FVRO and the Protective Bail Condition by communicating with the protected person by text message or email. Those communications were not solely to make arrangements to spend time with or communicate with any child or children of the protected person and himself.
4. The emails and text messages did not make threats to or about the protected person. The learned magistrate described the text messages as follows:[2]

The texts and emails are articulate and verbose.

They display a level of intelligence and comprehension. They are, in the most part, grammatically correct and correct in punctuation and display a level of higher education through that punctuation and vocabulary.

...

The content of the messages are oppressive, overbearing, relentless and harassing in nature. They are repetitive, manipulative, and coercive. They seek to undermine the protected person's self-esteem.

They seek to make her feel guilty because of his suffering and his declarations of love for her and the children, as well as trying to make her feel responsible for him feeling he's going to die. He blames her for his incarceration, seeks to undermine her faith in the court process by misrepresenting what has occurred in court, what may occur in court, the attitude of the judiciary to her applications. He has blatantly disregarded of not only the family violence restraining order, but also the protected bail conditions.

1. Mr Thompson accepts this characterisation.
2. In terms of the timing of the offending behaviour, the first tranche of offences were committed between 21 February 2023 and 8 May 2023. Some of these offences were committed after Mr Thompson had been charged with the original seven offences of breaching the FVRO for which he received a fine and spent conviction orders.
3. The second tranche of offences were committed between 9 May 2023 and 30 November 2024. These offences were committed after Mr Thompson had been convicted of the original seven offences and whilst Mr Thompson was on bail for the first tranche of offences. Most of the offences also occurred after Mr Thompson had been charged with the first tranche of offences.
4. The third tranche of offences were committed between 22 December 2023 and 4 April 2024, which is again after Mr Thompson had been charged with the first tranche of offences, whilst Mr Thompson was on bail and after Mr Thompson had been convicted of the first seven offences.

1. Mr Thompson accepted the facts as read and that s 61A of the RO Act applied to him.
2. In the course of his plea in mitigation,[3] Mr Thompson's counsel submitted that the appropriate sentencing course was to conditionally suspend any term of imprisonment imposed or, alternatively, to impose a pre‑sentence order to allow Mr Thompson to participate in a men's behaviour change programme.
3. Mr Thompson's counsel submitted that there were many breaches, but no allegations of contact breaches or of any physical violence or threats. Mr Thompson's counsel accepted that the breaches were emotionally manipulative or coercive.
4. Mr Thompson provided a letter to the court dated 17 July 2024, in which he acknowledged the harm and emotional distress he had caused to the protected person, expressed remorse and apologised. Mr Thompson's counsel submitted that the letter demonstrated that Mr Thompson has expressed insight into the effect that his conduct has had on the protected person.
5. Mr Thompson's counsel submitted that the 'penny has dropped' in terms of Mr Thompson now understanding that these messages do cause harm. Mr Thompson's counsel submitted that the terms of the FVRO did permit contact concerning the children and that not every communication between Mr Thompson and the protected person breached the terms of the FVRO.
6. Mr Thompson's counsel submitted that Mr Thompson did, at least for a time, have a material misunderstanding as to contact that was permitted in that he believed he could communicate with the protected person to broaden his access to the children. However, his counsel (since becoming engaged) had corrected that misunderstanding.
7. Mr Thompson's counsel referred to the lack of any breaches between 4 April 2024 and his arrest on 2 July 2024, and the reduction in the frequency of the breaches in 2024 in comparison to 2023. Mr Thompson's counsel submitted that it would appear that Mr Thompson has, belatedly, understood the seriousness of his situation and the ways in which he could avoid breaching the FVRO in the future.
8. Mr Thompson's counsel also referred to the effect that the various court proceedings (including Family Court proceedings) had on Mr Thompson, and that for periods of time he was unrepresented and managing all the court matters himself. This caused Mr Thompson some stress and difficulties in balancing all responsibilities and undertaking all tasks. Mr Thompson's counsel submitted that Mr Thompson was a good and devoted father.
9. Mr Thompson's counsel outlined the history of the relationship between Mr Thompson and the protected person, including that they first commenced a relationship in 2001 when Mr Thompson was 20 years old. The couple married in 2014 and have two children born in 2015 and 2018.
10. Mr Thompson's counsel outlined that approximately two years prior to the sentencing, Mr Thompson's younger brother, aged 17, died by suicide whilst he was living with Mr Thompson. Mr Thompson and his brother were close and Mr Thompson was offering his brother housing whilst he was going through a difficult period. Mr Thompson found his brother's body and his death had a profound and traumatic effect on him, which unfortunately lead to Mr Thompson turning to prohibited drugs to help deal with his grief. This drug use was a significant factor in the breakdown in his relationship with the protected person. Mr Thompson's drug use ceased from early 2023.
11. Following the breakdown of his relationship, Mr Thompson had limited contacted with his children which caused him stress and anxiety and impacted his mental health, which contributed to the way in which he communicated with the protected person. Mr Thompson's counsel outlined that Mr Thompson did not see his children between February and September 2023. Mr Thompson commenced supervised visits with his children in September 2023 and since January 2024 has had unsupervised visits with his children.
12. In terms of employment history, Mr Thompson's counsel outlined that he has been consistently employed since he left school. Mr Thompson has a Bachelor of Science in Audio Production and Engineering, and edits radio shows and podcasts. Mr Thompson has also previously worked with his father in marketing and worked as a state manager for a major steel company as well as working in other business development and sales manager jobs with a DJ job on the side. Following the death of his brother and his estrangement from his children, Mr Thompson had a period of time in 2023 where he was unable to work due to the effects of those events on his mental health but had resumed working prior to the sentencing.
13. Mr Thompson's counsel submitted that Mr Thompson had good family support in the form of his partner and mother.
14. Mr Thompson's counsel submitted that Mr Thompson had entered guilty pleas and saved the parties from a more painful and time‑consuming process. Mr Thompson had also been in custody since his arrest on 2 July 2024 (being 30 days) and had spent two additional days in custody on other occasions. Mr Thompson had found custody to be a harrowing experience. He had been subject to 23‑hour lockdowns, had been assaulted and had his property stolen from him. Mr Thompson's counsel submitted that the time in custody had a very strong deterrent effect on Mr Thompson.
15. Mr Thompson's counsel outlined that Mr Thompson had committed to putting in place measures to avoid contact with the protected person, including using intermediaries to arrange pick‑ups and drop‑offs for his children.
16. It was submitted that if Mr Thompson was sentenced to conditionally suspended imprisonment or a pre‑sentence order, Mr Thompson could participate in the Connect and Respect programme offered through Fremantle Community Corrections. Mr Thompson's counsel submitted that Mr Thompson believes that it would positively benefit him to do so and wanted to participate.
17. Mr Thompson's counsel also addressed the learned magistrate on the application for a serial family violence offender order.

1. Mr Thompson also relied on character references or affidavits provided by the following individuals:

(a) Casey Young dated 17 July 2024;

(b) James Fuller dated 1 December 2023;

(c) Adriana Catalano dated 18 July 2024;

(d) Craig Thompson dated 17 July 2024;

(e) Adriana Catalano dated 7 July 2024;

(f) Peta Gore dated 7 July 2024; and

(g) Linda Gore dated 7 July 2024.

1. The learned magistrate had before her a pre‑sentence report dated 23 May 2024 and prepared for the purposes of the first tranche of offences.
2. By way of summary, the pre‑sentence report states that Mr Thompson acknowledged his offending behaviour, although he somewhat justified his actions and stressed his lack of understanding of the stringent conditions of the FVRO. Mr Thompson stated that his time away from the children led to feelings of depression and the ongoing attempts to request access. Mr Thompson stated at the time that he regretted his actions and now understood he should not have acted outside the conditions of the FVRO.
3. The report states that Mr Thompson's risk of reoffending appears to correlate with poor emotional regulation, poor coping and decision‑making skills and a lack of consequential thinking.
4. At the time of the report, Mr Thompson lacked a support network but presented as highly focussed on reunification with his two children and appeared to be developing a working arrangement with the protected person in relation to contact.
5. The report summarised Mr Thompson's personal history, including a challenging upbringing where he witnessed cannabis use and arguments between his parents and domestic violence perpetrated by his father. The report also details that Mr Thompson became emotional when discussing the suicide of his brother and his feelings of guilt and grief that remain unresolved. The report details Mr Thompson's past drug use.
6. The report states that Mr Thompson presented as open to exploring his offending behaviour and should the court determine a community‑based sanction is appropriate, supervision and programme requirements are recommended with a term of more than six months to ensure participation in the relevant programmes. Parole eligibility is supported.

1. The learned magistrate commenced her sentencing remarks by outlining the various charges and the procedural history.[4]
2. The learned magistrate had regard to:

(a) the statutory penalties for each offence, and the application of s 61A of the RO Act;[5]

(b) Mr Thompson's guilty pleas, and gave Mr Thompson a reduction of 5% for the first tranche of offences (PE 24316/2023 ‑ PE 24374/2023) for which Mr Thompson pleaded guilty on the second listed trial date. The learned magistrate gave Mr Thompson a reduction of 25% for the remaining offences;[6]

(c) the time Mr Thompson spent in custody, being the 30 days since 2 July 2024 and two further days on 13 May 2023 and 18 January 2024;[7]

(d) the pre-sentence report;[8]

(e) the character references provided by Mr Thompson;[9] and

(f) the plea in mitigation given by Mr Thompson himself on 29 April 2024 when he pleaded guilty to the first tranche of offences and the plea in mitigation given by his counsel on his behalf on 1 August 2024.[10]

1. The learned magistrate had regard to the content of the text messages and emails. In addition to the summary of the nature of the communications detailed in [17] of these reasons, the learned magistrate provided examples of the content of the com[11]nications.11 Her Honour describes the themes from the communications as including misrepresenting court proceedings and procedures; being overbearing; seeking to undermine the protected person and their faith in the judicial system; being over familiar; declaring his underlying love for the protected person; blaming the protected person for him being in jail; claiming that the protected person will be in trouble for perjury; stating that he may lay charges against the protected person; stating that the protected person has been saved from jail because he has not made a complaint; and seeking to make the protected person feel guilty because of hi[12]suffering.12
2. Her Honour had regard to the timing of the offending behaviour, in comparison with the dates on which Mr Thompson was charged with the various tranches of offences and had regard to Mr Thompson being on bail at the time of his offending.[13] The learned magistrate also found that Mr Thompson should have been under no illusion as to the serious position he had placed himself in by choosing to disregard or fail to comply, repeatedly, with the terms of the order.[14]
3. The learned magistrate also considered that a further aggravating factor was that Mr Thompson was a repeat offender and had more than two other previous convictions.[15]
4. Her Honour considered by way of mitigating factors that Mr Thompson had been a good father and the loss of his connection to his children;[16] that Mr Thompson had indicated that he was remorseful and apologetic;[17] Mr Thompson's dysfunctional upbringing, childhood trauma and that he suffered from anxiety and adult ADHD;[18] that the loss of access to his children caused him significant feelings of grief and despair as a mitigating factor;[19] that the time spent at Hakea Prison was particularly onerous for persons such as Mr Thompson at present;[20] and that Mr Thompson had now managed to put in place steps to control his contact with the protected person.[21]
5. Her Honour concluded that there was a need for both personal deterrence[22] and for general deterrence.[23]
6. The learned magistrate observed that as Mr Thompson is a repeat offender, the starting point for the sentence was a term of imprisonment and concluded that the number and nature of the offences meant that it was not unjust to impose a term of imprisonment. Her Honour was also found that the incessant and offensive content of a number of messages meant that Mr Thompson was likely to be a threat to the emotional health and wellbeing of the protected person.[24]
7. The learned magistrate sentenced Mr Thompson to three months' imprisonment on each charge. The learned magistrate made charge MH 3350/2024 be the head sentence, and ordered that the sentences for charges PE 24316/23, PE 24357/2023, PE 3467/2024, PE 3476/2024 and PE 3516/2024 be served cumulatively upon the head sentence. All other sentences were ordered to be served concurrently with the head sentence.[25]
8. The total effective sentence imposed by the magistrate was 18 months' immediate imprisonment, which was backdated to 2 July 2024 when Mr Thompson was taken into custody.[26]
9. The learned magistrate then considered whether it was appropriate to suspend the term of imprisonment and concluded that it was not.[27]
10. Mr Thompson was made eligible for parole and was declared to be a serial family violence offender pursuant to s 124E of the Sentencing Act.[28]

1. Mr Thompson sought leave to appeal the decision on the following two grounds:
   1. The Magistrate erred by failing to find the appellant was remorseful for his offending behaviour.
   2. The Magistrate erred by imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
2. Mr Thompson only presses the second ground of appeal. That is, Mr Thompson appeals on the basis that the sentence imposed offends the first limb of the totality principle. No complaint is made about the individual sentences imposed or that a term of immediate imprisonment was imposed.

1. This appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed by a court of summary jurisdiction as a result of a conviction is a decision which may be appealed.[29] An appeal against sentence may be made on the grounds that, relevantly, the sentencing court made an error of law or imposed a sentence that was excessive.[30]
2. Leave to appeal is required for each ground of appeal.[31] Leave to appeal must not be granted on any ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[32] meaning that the ground is required to have a rational and logical prospect of succeeding.[33] A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[34]
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.[35] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[36]

Legal principles - relevant sentencing principles

1. The principles that apply on an appeal against sentence on the basis that a total effective sentence infringes the totality principle are well established. It was summarised by the Court of Appeal in Kambabi v The State of Western Australia as follows:[37]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

...

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. An appeal on the ground that the first limb of the totality principle has been infringed alleges an implied error, and therefore the principles referred in House v The King[38] are applicable. As a consequence, it is necessary for the sentence to be unreasonable or plainly unjust before an error of principle can be inferred. The corollary of this rule is that appellate courts ought not be 'tinkering' with sentences.[39]
2. It is also relevant to observe that the sentencing process proceeds on the basis of 'instinctive synthesis', unless otherwise required by statute (for example s 9AA of the Sentencing Act). The task of the sentencing court is to take into account all the relevant factors and to arrive at a single result which takes due account of them and is proportionate and just. The sentencing process does not proceed on the basis of a two‑stage approach, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case.[40]

1. Mr Thompson does not challenge the individual sentences imposed by the learned magistrate and accepts that the learned magistrate correctly stated the principles for sentencing for this type of offence.
2. Whilst Mr Thompson accepts that the breaches were neither minor nor technical, he submits that they did not involve some of the aggravating features of comparable cases which involved threats to injure or kill or actual contact or actual violence.[41] Mr Thompson submits that when all relevant factors and circumstances are weighed, the aggregate sentence imposed by the learned magistrate was unreasonable or unjust.
3. Mr Thompson accepts the nature of the offending was serious and lasted over a considerable length of time. However, Mr Thompson submits that the absence of involvement of actual violence, actual contact, any threats, or element of intimidation in the present case are important relevant considerations.[42] Also relevant is the lack of any evidence or any finding that the protected person was fearful for her safety as a result of the offending.
4. The respondent submits that whilst the communications did not contain threats of violence, the communications were manipulative, abusive and personally offensive which could jeopardise the mental health and well‑being of the protected person.[43] The respondent submits that when regard is had to all relevant sentencing factors, including the number of breaches, the period of time of the offending and the nature of the communications, it cannot be established that the total effective sentence was so unreasonable or unjust so as to fall outside the range of a sound exercise of the sentencing discretion.

Has there been a breach of the totality principle?

1. The first limb of the totality principle requires the total effective sentence to bear a proper relationship to the overall criminality of the offending behaviour. This requires the court to consider the total effective sentence in light of the maximum sentences, the seriousness of the offending, the personal circumstances of Mr Thompson, all relevant sentencing factors and comparable cases. Having considered these matters, I am of the view that the total effective sentence does not infringe the first limb of the totality principle.

1. The statutory penalty for a contravention of s 51(2a) of the Bail Act is a fine of $10,000 or imprisonment for three years, or both.[44]
2. The statutory penalty for a contravention of s 61(1) of the RO Act is a fine of $10,000 or imprisonment for two years, or both. When Mr Thompson was sentenced on 1 August 2024, the provisions of s 61A of the RO Act were also applicable.
3. Section 61A of the RO Act applies if a person is convicted of a relevant offence (the qualifying relevant offence) and has committed, and been convicted of, at least two offences that are also relevant offences (the previous relevant offences) within the period of two years before the person's conviction of the qualifying relevant offence.[45] An offence under s 61(1) of the RO Act is a relevant offence.[46]
4. Accordingly, on 1 August 2024, Mr Thompson had been convicted of a qualifying relevant offence (being the 105 breaches of the FVRO to which he was being sentenced) and had also committed at least two offences that are also relevant offences in the period of two years before those convictions.
5. Section 61A(5) provides that if the person being sentence is not a child, then a penalty must be imposed that is or includes imprisonment. However, s 61A(6) of the RO Act provides that a court may decide not to impose a penalty on the person that is or includes imprisonment if:

(a) imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of a person protected or the community generally.

1. Accordingly, the starting point for Mr Thompson's sentence for the breaches of the FVRO was a term of imprisonment.

1. Mr Thompson's breaches of the FVRO and the Protective Bail Condition did not involve violence or threats of violence. However, this does not mean they were at the lowest end of the scale of seriousness. A FVRO is made under pt 1B of the RO Act, the objects of that part being:[47]

(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; and

(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 FVRO, the court must have been satisfied in this case that either Mr Thompson had committed family violence against the protected person and was likely to do so again, or that the protected person had reasonable grounds to apprehend that he would commit violence against her.[48]
2. In Rogers v Hitchcock,[49] Hall J (as his Honour then was) outlined the purpose of the RO Act:

The Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, 32 [13]. 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. The clear intention of s 61A is to impose the presumption of a sentence of imprisonment for repeat offenders. At the time s 61A was introduced it was said that it was intended to address concern that repeat offenders were being dealt with too leniently and needed to be dealt with 'in a far more robust way' (Parliamentary Debates, Restraining Orders Amendment Bill 2011, Second Reading Speech, Legislative Assembly, 22 June 2011, pages 1622-1623 (Attorney General, The Honourable Christian Porter)).

1. I respectfully agree with his Honour. Further, it has been generally recognised that the RO Act is an integral part of the legal response to domestic violence.[50]
2. Breaches of a FVRO are serious. As observed by Forrester J in Lawson v Director of Public Prosecutions [No 2]:[51]

Any breach of a violence restraining order (or, as in this case, a CAO) is serious. It is not only an offence against the protected person, who is entitled to be protected from conduct of this kind, but it is also an offence against the court ‑ a disregard of a court order. General deterrence is a paramount sentencing consideration in cases of this kind.

1. I respectfully agree with her Honour.
2. Similar observations apply in relation to the breaches of the Protective Bail Condition.
3. I consider Mr Thompson's breaches of the FVRO and the Protective Bail Condition to be in the upper‑mid range of seriousness.
4. The breaches were deliberate and sustained, occurring over a period of approximately 13 months.
5. I have reviewed the communications sent by Mr Thompson. I agree with the conclusions expressed by the learned magistrate in relation to the content and nature of the communications. As outlined by the learned magistrate, the communications went well beyond communicating solely about their children. They were emotionally manipulative and coercive. They were relentless and often lengthy. On some occasions, more than one communication was sent on one day (albeit only one charge was laid for each day). Some of the messages were designed to 'guilt' the protected person into dropping court actions and Mr Thompson regularly blamed the protected person for the situation Mr Thompson found himself in. In some of the messages Mr Thompson propositioned the protected person and in many he berated her for the breakdown of the relationship, the court matters he was facing and the lack of visitation with his children.
6. Mr Thompson submitted that there was no evidence before the court, and no finding was made, that the protected person was fearful for her safety and wellbeing as a result of the communications. I accept this to be the case. However, that does not mean that the communications did not have an impact on the protected person. The number, nature and length of the messages would have had an impact on the protected person, even if not inducing fear. I do not understand Mr Thompson to submit otherwise.
7. I am satisfied that the lack of evidence or a finding that the protected person was fearful for her safety does not mean that the offending behaviour did not fall in the upper‑mid range of seriousness.
8. Mr Thompson's counsel submitted that the degree and frequency of the offending decreased by the time of the third tranche of offences. The first two tranches involved approximately 100 breaches over an 11 month period. The third tranche involved 10 breaches over a four month period. Further, Mr Thompson was not charged with any further offences between April 2024 and the date he was charged with the third tranche of offences was 2 July 2024. I accept there has been a decrease in Mr Thompson's offending in 2024.

1. The offending was aggravated by the fact that Mr Thompson was on bail at the time of most of the offending. Mr Thompson first signed a bail undertaking on 13 March 2023. Mr Thompson breached that bail undertaking nine times, commencing on 16 March 2023.
2. Further, the offences the subject of the first tranche of offending behaviour commenced in February 2023, but continued after Mr Thompson had been charged with and convicted of the seven offences of breaching the interim FVRO.
3. The offences the subject of the second and third tranches of offending were all committed whilst Mr Thompson was on bail.
4. Mr Thompson was asked by the protected person to stop bombarding her with messages and was warned that he was breaching the orders, yet he continued to communicate and breach the terms of the order.[52] This aggravated the offending.
5. I also do not accept that Mr Thompson was under any misapprehension at the time of his offending that it was contrary to the terms of the FVRO and the Protective Bail Condition. To the extent it was asserted otherwise in the plea in the mitigation before the magistrate, I do not accept that assertion. As outlined by the learned magistrate, Mr Thompson was represented by duty counsel at the time of the FVRO, and he continued to offend notwithstanding being charged for earlier offending.
6. Mr Thompson does have a criminal record. That is not an aggravating factor, but it does mean that Mr Thompson cannot rely on being of good character. In the terms of the offending, the conviction of most relevance is the conviction on 1 May 2023 for seven offences of breaching the terms of the interim FVRO in relation to the same protected person. However, there are no other offences on the criminal record of failing to comply with a FVRO, protective bail conditions, or any court order.

1. The mitigating factors in relation to Mr Thompson were outlined by the learned magistrate and were detailed in Mr Thompson's plea in mitigation.
2. There is no dispute as to Mr Thompson's past work history, his medical history or the impact on his mental health from the death of his brother and the breakdown of his marriage. I have taken this into account and also the content of the pre‑sentence report. There is no dispute that Mr Thompson is a loving and connected father, and that the separation from his children has caused him hardship and distress.
3. Mr Thompson has spent time in custody, both prior to sentencing and since. I have no doubt that this time in custody has been difficult for him.
4. Mr Thompson has indicated his remorse and regret in his letter to the court dated 17 July 2024. Mr Thompson has made arrangements to manage the interaction with the protected person after he is released from prison in so far as it concerns contact regarding their children. This shows a degree of insight on his behalf. That letter is to be contrasted with his earlier letter to the court dated 28 April 2024 where Mr Thompson, as outlined in the pre‑sentence report, appeared to have difficulty accepting responsibility for his actions and spent some time identifying other factors that were responsible, including the actions of the protected person.
5. Mr Thompson also provided character references which I have reviewed. The character references talk in terms of this behaviour being out of character for Mr Thompson.
6. Mr Thompson also pleaded guilty to the charges. The pleas of guilty in relation to the first tranche of offending occurred at the trial date. The learned magistrate gave a discount of 5% for these offences. The pleas of guilty for the remaining charges occurred much earlier and the learned magistrate gave a discount of 25% for that offending.

1. The circumstances under which a breach of a FVRO may occur can vary significantly. Accordingly, it is not possible to discern a customary range of sentences.[53]
2. Notwithstanding, other comparable cases may be useful as providing a reference point for ensuring broad consistency in sentencing. In Dennis v Lanternier [No 2], Jenkins J held as follows in relation to comparable cases in the context of a breach of a FVRO:[54]

Nevertheless, there has been a sufficient number of cases dealt with on appeal to establish the following principles:

(1) offences at the lower end of the range of seriousness of offences against s 61(1) are usually dealt with by the imposition of a penalty other than a sentence of imprisonment to be served immediately;

(2) serious offences against s 61(1) will incur a term of imprisonment to be served or, if the offender's circumstances are favourable, suspended;

(3) offences which include a threat of violence, which the offender is apparently in a position to carry out, actual violence or the invasion of the protected persons home are regarded as offences at the higher end of the range of seriousness of offences against s 61(1);

(4) an immediate sentence of 7 months' imprisonment imposed for a serious breach of s 61(1) has been upheld on appeal.

1. The parties have referred me to the following cases: Forward v Bower;[55] Musgrove v Millard,[56] Dennis v Lanternier [No 2],[57] Burton v Steer,[58] Smart v Sloane,[59] and Howell v Davies.[60] As a whole, these comparable cases reveal outcomes which are consistent with the observations of Jenkins J in Dennis v Lanternier [No 2] referred to above.
2. Mr Thompson submits that what sets the present case apart from the comparable cases is a lack of any contact breaches, violence, threats of violence or any fear on the part of the protected person. Mr Thompson submits that these cases reveal that a sentence of 18 months' imprisonment, absent these matters, is contrary to the comparable cases.
3. Unless otherwise stated, all offences involved pleas of guilty.
4. In Forward v Bower,[61] the appellant was convicted of two counts of aggravated assault occasioning bodily harm, one count of burglary, three counts of breaching a VRO and one count of breaching a protective bail condition. The breaches of the VRO occurred over a period of approximately one month and consisted of sending a message to the protected person and the two aggravated assaults. The appellant's sentence was reduced on appeal to an aggregate sentence of 18 months' immediate imprisonment from 30 months' imprisonment.
5. In Burton v Steer,[62] the appellant pleaded guilty and was convicted of 14 breaches of a FVRO committed over a period of approximately two and a half weeks. He was sentenced to 18 months' imprisonment. The breaches consisted of text messages, one of which stated 'I'm coming to get you'. The appellant had a record consisting of 32 offences of breaching a VRO and 14 offences of breaching protective conditions. An appeal against sentence was dismissed.
6. In Dennis v Lanternier [No 2],[63] the appellant pleaded guilty and was convicted of 20 breaches of a FVRO over a period of approximately seven months. The breaches consisted of text messages of a threatening and abusive manner, including the threats to kill himself, his child and the complainant as well as threats to injure himself. The offences also involved unanswered calls and letters to the complainant. Some of the offences were committed whilst the offender was on bail and on a pre‑sentence order. An appeal against a sentence of 18 months' immediate imprisonment was dismissed.
7. In Musgrove v Millard,[64] the appellant was convicted of a total of 113 offences: 104 convictions of breaches of a VRO, seven convictions for breaching a protective bail condition, one conviction for stalking and one conviction for unlawful installation of a tracking device. The breaches of the VRO consisted of text messages and unanswered telephone calls sent over a period of approximately two months. The appellant also attended the protected person's address or workplace. No physical violence was involved, but the appellant was convicted of stalking and installation of a surveillance device. The total effective sentence imposed by the sentencing magistrate was 16 months' imprisonment. That included individual sentences for most of the breaches of the VRO of three months' imprisonment, with some being four months' imprisonment. On appeal, that sentence was reduced to 12 months' imprisonment. However, that reduction was directed towards the individual sentences imposed for the offences of stalking and installation of a surveillance device and not the sentences imposed for the breaches of the VRO.
8. In Smart v Sloane,[65] the appellant was convicted of 17 breaches of a FVRO, one conviction for a stalking offence, and one conviction for breaching protective bail conditions. The offences occurred over a period of approximately five weeks. The breaches of the VRO consisted of 235 unanswered telephone calls made to the protected person. The majority of calls were made when the appellant's number was blocked by the protected person. The charge of stalking was based on the telephone calls. The calls intimidated the protected person.
9. A sentence of six months' imprisonment was imposed for each of the breaches of the FVRO, six months for the stalking charge and four months for the breach of bail. The total effective sentence was structured so that the sentence for the first breach of the FVRO offence and the stalking offence were to be served cumulatively, with all other sentences to be served concurrently. A total effective sentence of 12 months was imposed. The appeal court found that the sentence for the stalking offence was too long, given the seriousness of the conduct was captured by the sentences for the breach of the FVRO. The sentence was reduced to two months' imprisonment, reducing the total effective sentence to eight months' imprisonment.
10. In Howell v Davies, the appellant was sentenced to a term of 7 months' imprisonment for one breach of a FVRO in circumstances where the appellant approached the protected person immediately after a court hearing (contrary to the FVRO) and asked, 'When am I going to see my kids?'. This was the appellant's third breach of the same order within a four month period and occurred just over 10 days after the appellant was released after serving two months' imprisonment for the previous breaches. The appellant had a criminal record which included 11 convictions for breaches of a restraining order in the previous five years, in addition to other offences of violence, breaches of bail and breaches of parole. Section 61A of the RO Act also applied. The appeal against sentence was dismissed.

1. In all the circumstances, I am not satisfied that the sentencing discretion miscarried such that it can be said that the sentence of 18 months' imprisonment was unreasonable or plainly unjust.
2. The offending was objectively serious. It may not have involved actual contact breaches or threats of violence (or have been perceived that way by the protected person), but it was emotionally manipulative and coercive. The breaches involved extensive communications over a period of 13 months. The communications were deliberate and relentless.
3. The breaches were aggravated by Mr Thompson continuing to breach after being convicted of the same behaviour, and also charged with further offences and being placed on bail. Mr Thompson was also warned by the protected person that he was breaching the FVRO, but he continued.
4. When the totality of the offending behaviour is considered, a total effective sentence of 18 months' imprisonment is not disproportionate and bears a proper relationship to the overall criminality involved.
5. I consider the sentence imposed adequately takes into account the mitigating factors. The sentence adequately addresses Mr Thompson's medical history and his loving and caring role as a father to their children. The pleas of guilty were taken into account by the learned magistrate. Whilst Mr Thompson did plead guilty to the charges, in light of the nature of the charges, in the form of written communications, I am of the view that the learned magistrate was generous in giving a discount of 25% for the second and third tranches of offending, given the existence of the written evidence of Mr Thompson's conduct.
6. The learned magistrate imposed individual sentences of three months for each offence. No issue is taken with these individual sentences. The learned magistrate then structured the sentence as follows to address the issue of totality:

(1) Charge MH 3350/2024 (from the third tranche) - three months' imprisonment (head sentence);

(2) Charge PE 24316/2023 (from the first tranche) - three months' cumulative;

(3) Charge PE 24357/2023 (from the first tranche) - three months' cumulative;

(4) Charge PE 3467/2024 (from the second tranche) - three months' cumulative;

(5) Charge PE 3476/2024 (from the second tranche) - three months' cumulative;

(6) Charge PE 3516/2024 (from the second tranche) - three months' cumulative; and

(7) All remaining charges - three months' concurrent.

1. Given the number of charges, a degree of accumulation between the sentences was appropriate. I do not consider that the accumulation should be limited to one set of accumulation for each tranche of offending. Each offence took place on a different day and there is nothing unifying about the individual tranches of offending or distinct as between them. The sentence was also backdated to account for the time spent in custody when bail was refused.
2. Mr Thompson submits that the comparable cases reveal that the highest sentence imposed is 18 months' imprisonment, and that case involved text messages of a threatening and abusive manner, including the threats by the offender to kill himself, his child and the complainant. Mr Thompson submits that the present sentence, without the corresponding threats of violence, or contact breaches or associated fear on the part of the protected person, is therefore too high.
3. I do not accept this submission. When this court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of sentences for offences. As acknowledged by counsel, comparable cases are of limited assistance in cases involving breaches of a FVRO, owing to the variety of circumstances in which such offending can occur.
4. In the present case, the offending involved a much larger number of breaches than all the other cases save for Musgrove v Millard. Further, the offending in the present case was over a significantly longer period of time. The communications were long and relentless and emotionally manipulative. The communications were aggravated by their timing in relation to the various dates of offending. None of the comparable cases concern similar facts to the present offending.
5. In all these circumstances, I am of the view that the total effective sentence of 18 months' imprisonment is not unreasonable or unjust and properly reflects the totality of the serious offending.
6. I therefore propose to make the following orders, but will hear further form the parties in relation to the orders and as to costs:
   1. Application for leave to appeal refused.
   2. Appeal dismissed.

# denotes the offence for which a head sentence of three months' imprisonment was imposed.

* denotes the offence for which a three month term of imprisonment (cumulative) was imposed.

The balance of offences had a three month term of imprisonment (concurrent) was imposed.

Failed to comply with a condition of his bail undertaking imposed under clause 2(2)(c) or 2(2)(d) of Part D of schedule 1 of the Bail Act 1982 entered into

Bail Act 1982 (WA) s 51(2a)

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

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

[34] Sami v Duggan [2011] WASC 304 [38].

[37] Kambabi v The State of Western Australia [2019] WASCA 44 [21], citing Salkilld v Western Australia [2017] WASCA 168 [48] and Trajkoski v Western Australia [2018] WASCA 176 [30].

[38] House v The King (1936) 55 CLR 499.

[39] Allen v The State of Western Australia [2017] WASCA 203 [66].

[40] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [74] ‑ [78]; Markarian v The Queen (2005) 228 CLR 357 [37] ‑ [39] (Gleeson CJ, Gummow, Hayne & Callinan JJ), [66] ‑ [70], [84] (McHugh J); Kelly v The State of Western Australia [2024] WASCA 116 [255] ‑ [262] (Buss P), [351] ‑ [358] (Mazza & Hall JJ).

[44] Bail Act, s 51(6).

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

[50] Smart v Sloane [2019] WASC 35 [32].

[51] Lawson v Director of Public Prosecutions [No 2] [2024] WASC 279 [89].

[52] See messages dated 18 March 2023; 24 April 2023; 27 May 2023; 13 August 2023.

[53] Marich v WA Police [2024] WASC 173 [57] and the authorities cited therein.

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

[55] Forward v Bower [2007] WASC 205.

[56] Musgrove v Millard [2012] WASC 60.

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

[58] Burton v Steer [2019] WASC 299.

[59] Smart v Sloane [2019] WASC 35.

[60] Howell v Davies [2019] WASC 220.

[61] Forward v Bower [2007] WASC 205.

[62] Burton v Steer [2019] WASC 299.

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

[64] Musgrove v Millard [2012] WASC 60.

[65] Smart v Sloane [2019] WASC 35.