THOMPSON -v- WA POLICE [2025] WASC 466 (5 November 2025)

1. The appellant's children are persons protected under the FVRO, which was served on the appellant on 16 May 2024 and expires on 15 May 2026.
2. The conditions of the FVRO included that 'the appellant must not communicate or attempt to communicate with the person protected by any means whatsoever, including SMS or text messages or any other electronic means'.
3. On 20 November 2024, the appellant was remanded in custody (on unrelated charges) in Casuarina Prison (Casuarina). During the day, the appellant posted a letter via the internal letterbox within his unit at Casuarina.
4. The letter was provided to security for investigation after the prison staff identified that the intended recipients of the letter were the appellant's children and were protected by the FVRO.
5. The three‑page letter expressed the appellant's love for his children, apologies for past incidents and a desire to have contact with his children.

Appellant's submissions in the Magistrates Court

1. The appellant was represented at the hearing before the learned magistrate on 25 June 2025. The appellant pleaded guilty. Counsel for the appellant submitted that:

(1) the letter was intercepted prior to receipt by the appellant's children;

(2) the appellant was feeling depressed and wanted to reach out to his children to apologise for his past behaviours and let them know he loved them;

(3) the appellant understood he should not have sent the letter;

(4) the appellant pleaded guilty at a very early opportunity after obtaining legal advice; and

(5) the appellant had commenced Family Court proceedings seeking to have contact with his children.

The learned magistrate's sentencing of the appellant

1. The learned magistrate took into account as mitigating factors the appellant's early plea of guilty, affording him a 20% discount, and his acceptance of responsibility.
2. The learned magistrate noted the appellant's previous offending and said that while it was not an aggravating factor, it highlighted the need for specific deterrence, that is the need to discourage the appellant from engaging in this type of offending in the future. In this regard, the relevant offending history of the appellant was that he had previously been convicted in 2019 of multiple breaches of a family violence restraining order in relation to his ex‑partner, who is also the mother of his children to whom he sent the letter. The appellant was fined for each of those offences. The appellant also had convictions for breaching a violence restraining order, not in the context of a family relationship, for which he was also fined. The appellant had been convicted of violent offences - the offence of endangering the health, life or safety of a person in 2024 for which he received a conditional suspended imprisonment order and the offence of assaulting a public officer in 2014 for which he received a fine. The appellant also had been convicted of offences committed in Victoria - an offence of arson in 2023 and multiple breaches of family violence restraining orders in 2020 for which he was fined.
3. The learned magistrate characterised the appellant's present offending as a 'brazen breach of the order' and as indicating a 'desire to, essentially, do what [the appellant wanted] despite the existence of the order'.[1]
4. The learned magistrate determined that, in all of these circumstances, only a term of immediate imprisonment was appropriate. After discounting the term by 20% for the appellant's plea of guilty, the learned magistrate sentenced the appellant to a term of immediate imprisonment of 6 months 1 day.
5. The learned magistrate also declared the appellant a serial family violence offender pursuant to s 124E of the Sentencing Act.

The sentence of 6 months and 1 day is manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the [appellant].

1. This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act).
2. The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[3]
3. Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. Those grounds include where there has been an error of law,[4] the sentence imposed was inadequate or excessive[5] and/or there has been a miscarriage of justice.[6]
4. The appellant must obtain leave to appeal.[7] If leave to appeal is not granted, the appeal is taken to have been dismissed.[8] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[9]
5. An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing magistrate has made an error in exercising his or her discretion.[10]
6. 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.[11]
7. A ground of appeal alleging that a sentence is manifestly excessive is asserting an implied error, as opposed to an express error.[12] An appeal alleging a sentence is manifestly excessive will only succeed if the appellant can demonstrate that the sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[13] A sentence may be excessive because the wrong type of sentence has been imposed[14] or because the length of the sentence is manifestly excessive.[15]
8. In determining whether a sentence is manifestly excessive as to type or length, the appellate court must examine the sentence having regard to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to that offence, the seriousness of the offence with reference to the scale of seriousness of offences of that kind, and the personal circumstances of the offender.[16]
9. As was noted by Martin CJ in Rubin v The State of Western Australia:[17]

A sentence will not be characterised as unreasonable or unjust if it was within the range of sentences reasonably open in the exercise of a sound discretionary judgment. Once it is accepted that there may be cases in which different types of sentence are reasonably open in the exercise of a sound discretionary judgment, it follows that an appeal against sentence on the ground of error to be implied from the type of sentence imposed can only succeed if it is established that the type of sentence imposed was not reasonably open in the exercise of a sound discretionary judgment.

1. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence.
2. Section 6(3) of the Sentencing Act provides that s 6(1) does not prevent the reduction of a sentence because of any mitigating factors or totality principles. According to s 8(1) of the Sentencing Act, a mitigating factor is one which, in the court's opinion, decreases the moral culpability of the offender or decreases the extent to which the offender should be punished.
3. Pursuant to s 6(4) of the Sentencing Act, a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
4. A court must not impose a term of immediate imprisonment unless it is the only appropriate sentencing option - that is, the court must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a term of immediate imprisonment.[18] In deciding whether it is so satisfied, the court must have regard to the sentencing principles in pt 2 div 1 of the Sentencing Act.
5. In HNA v The State of Western Australia, the court said:[19]

Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.

1. In accordance with s 39(1) of the CA Act the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this Court's power as contained in s 40(1)(e) of the CA Act to 'admit any other evidence' for the purposes of dealing with an appeal: CA Act s 39(3).
2. The appellant sought to adduce additional evidence by way of the affidavit of David Thomas Shackles affirmed on 3 November 2025. The affidavit annexes the letter that the appellant sent to his children, a copy of the FVRO and an email from the Sentencing Information Unit regarding time spent in custody by the appellant.
3. The respondent did not object to the admission of the additional evidence. I admit the additional evidence on the basis that it is relevant to the issues arising on the appeal.

1. The appellant contends that the learned magistrate's sentence involved an implied error in two alternative ways. First, that the sentence was excessive as to type, as imprisonment was not reasonably open for the offence. Second, and in the alternative, if a sentence of imprisonment was reasonably open, the term ought to have been suspended and the order that it be immediately served was not reasonably open.
2. In relation to the second contention, the respondent concedes that leave to appeal and the appeal should be granted.
3. For the reasons I outline below, I find that the sentence of imprisonment was reasonably open, but the term of imprisonment ought to have been suspended. The respondent's concession as to the second contention was rightly made in my view.

1. Section 61(1) of the Restraining Orders Act 1997 (WA) provides that the maximum sentence for breach of a family violence restraining order is 2 years imprisonment and a fine of $10,000.
2. It is not in dispute that a wide range of factual circumstances can apply to breaches of family violence restraining orders, and therefore, that every sentencing option is available.[20]

1. Although it is not possible to discern a customary range of sentences imposed for offences of this kind given the large range of circumstances in which breaches of family violence restraining orders occur, the following principles arise from cases involving a breach of a family violence restraining order:

(1) there is an emphasis placed on general deterrence for violent offences committed by men against women in domestic environments;[21]

(2) offences at the lower end of the range of seriousness are usually dealt with by penalty other than immediate imprisonment;[22]

(3) serious offences will incur a term of imprisonment to be served immediately or suspended, if the offender's personal circumstances are favourable;[23]

(4) actual violence, a threat of violence where the offender is in a position to carry out that violence, and/or invasion of the protected person's home are regarded as offences at the serious end of the range;[24] and

(5) where an offender has repeatedly breached family violence restraining orders or court orders, a sentence of imprisonment is open to the court.

1. The appellant's offending did not involve violence or threats of violence, nor was it manipulative or derogatory in nature. Given the letter was intercepted, the protected persons were not subject to any contact from the appellant.
2. The appellant did not engage in subterfuge or deceit. The appellant attempted to post the letter to the protected persons via the internal letterbox within his unit at Casuarina. While this demonstrates a lack of complex planning, it also demonstrates the appellant's blatant disregard for the law and of the orders of the court.
3. I am of the view that the appellant's offending falls towards the lower end of the scale of seriousness. However, his blatant disregard for orders of the court make personal and general deterrence important sentencing considerations.
4. It is also important to recognise that a breach of a family violence restraining order towards the lower end of the scale of seriousness is still likely to cause the protected persons to be fearful and distressed.[25]
5. In my view, it was open to the learned magistrate to impose a sentence of imprisonment for this offence. In coming to that decision, the learned magistrate had regard to the appellant's personal circumstances, the circumstances of the offending, the mitigating factors that the learned magistrate outlined and the importance of personal deterrence given the relevant prior convictions of the appellant. The learned magistrate also had regard to the importance of general deterrence in sentencing the appellant to a term of imprisonment.
6. The nature of the appellant's offending, that being his blatant disregard of the FVRO in circumstances where he had been previously convicted of breaches of court orders, means that it was not unreasonable or unjust for the learned magistrate to conclude that a term of imprisonment was appropriate.
7. The learned magistrate then considered, after evaluating all of the circumstances, that only a term of immediate imprisonment was appropriate and the option of suspending the term was not open.
8. Section 39(3) of the Sentencing Act provides that a court must not impose a term of immediate imprisonment unless it is satisfied that no other sentencing option would be appropriate. A sentence of immediate imprisonment is often described as a 'last resort' when no other disposition would be appropriate.[26] The judicial officer sentencing an offender must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately.[27]
9. I find that it was not reasonably open to the learned magistrate, upon application of the relevant sentencing principles and considerations and in all of the circumstances of the appellant's case, to be positively satisfied that suspended imprisonment was not appropriate. That is because the appellant's offending objectively falls towards the lower end of the scale of seriousness for offences of this kind.
10. I therefore grant the appellant leave to appeal and allow the appellant's appeal on the sole ground of appeal.

1. I set aside the appellant's sentence of 6 months and 1 day immediate imprisonment upon charge PE 3214 of 2025.
2. I must now resentence the appellant.
3. I take into account the mitigating factors in the appellant's case - the appellant pleaded guilty at an early opportunity, for which I afford him a 20% discount, and that his offending was of a non‑threatening nature.
4. However, the breach of a FVRO is a serious offence given the prevalence of domestic violence in the community. This makes general deterrence an important sentencing consideration. In the appellant's case, personal deterrence is also an important sentencing consideration given the brazen nature of the offending and the fact that the appellant has previous convictions for breaches of court orders.
5. I am satisfied that the appellant's offending was at the lower end of the scale of seriousness for offences of this kind given that it was not violent or threatening behaviour. Further, the protected persons did not receive the letter. However, his offending was of an inherently serious nature.
6. I am satisfied that the appropriate sentence at the time that the appellant was convicted was a term of suspended imprisonment of 6 months and 1 day.
7. There are, however, some practical difficulties that arise that prevent me from sentencing the appellant to a term of suspended imprisonment at the date of this appeal. If a term of imprisonment is suspended, there is no power to backdate that term.[28]
8. As at 25 June 2025, the appellant had already spent 123 days (approximately four months) in custody in relation to a charge that was later discontinued. Since he was sentenced on 25 June 2025, the appellant has spent a further four months and 12 days in custody. In total, the appellant has spent over eight months in custody. This is a matter that I may take into account in resentencing the appellant.[29] It is because the appellant has spent that time in custody that I consider that, pursuant to s 46 of the Sentencing Act, no further sentence should be imposed on the appellant.
9. The declaration that the appellant is a serial family violence offender pursuant to s 124E of the Sentencing Act is not disturbed.

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

[2] Amended appeal notice dated 22 July 2025.

[9] Samuels v The State of Western Australia [2005] WASCA 193.

[10] House v R [1936] HCA 40; (1936) 55 CLR 499.

[12] Mikulic v The State of Western Australia [2009] WASCA 150.

[13] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[14] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [59].

[15] Shi v The State of Western Australia [2020] WASCA 197 [37].

[16] Vagh v The State of Western Australia [2007] WASCA 17 [47].

[17] Rubin v The State of Western Australia [2016] WASCA 2 [49].

[18] Sentencing Act s 39(3).

[19] HNA v The State of Western Australia [2016] WASCA 165 [30].

[20] Sentencing Act s 42(2)(a); WA Police v CFB [2025] WASC 107 [82] (McGrath J).

[21] The State of Western Australia v Winch [2024] WASCA 79 [14].

[22] Dennis v Lanternier (No 2) [2017] WASC 5 [150] (Jenkins J).

[23] Dennis v Lanternier (No 2) [150].

[24] Dennis v Lanternier (No 2) [150].

[26] AH v The State of Western Australia [2014] WASCA 228 [115].

[27] Ness v The State of Western Australia [No 2] [2013] WASCA 56 [26] ‑ [27].

[28] Dragon v The State of Western Australia [2008] WASCA 252 [ 51].

[29] CAA s 41(4)(a).