Appellant Opposes Total Sentence Imposed by Magistrates Court
SELLENGER -v- TURNER [2021] WASC 308 (7 September 2021)
The appellant was charged with breaches of police orders and stalking. The Magistrates Court sentenced the appellant to a total effective sentence of 14 months' immediate imprisonment. The appellant alleged that the total sentence imposed infringed the first limb of the totality principle.
Facts:
On 23 February 2021 at 5.49 pm, the appellant was served a police order (number 449631). The police order was to expire on 26 February 2021 at 5.00 pm. The protected person was the appellant's ex-partner. On 24 February 2021 at about 2.15 pm, police observed a vehicle owned by the mother of the appellant and utilised by him.
It had been located 4m from the Post Office walls, where the protected person works. The appellant admitted that he was attempting to locate the private vehicle of the protected person to ascertain if she was at work. He then followed the protected person as witnessed by two police officers. On 26 March 2021, the appellant pleaded guilty to, and was convicted of two counts of breaching a police order committed on 24 February 2021 and 25 February 2021 respectively, contrary to the Restraining Orders Act 1997 (WA) and one count of pursuing another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person (stalking), committed between 23 February 2021 and 25 February 2021.
On 28 May 2021, the appellant was sentenced by the Magistrates Court at Bunbury to a total effective sentence of 14 months' immediate imprisonment, backdated to 25 February 2021. The learned Magistrate also declared the appellant to be a serial family violence offender under the Sentencing Act 1995 (WA) s 124E. The appellant appeals his sentence alleging that the total sentence imposed infringed the first limb of the totality principle.
Issues:
Whether or not the total effective sentence imposed breached the first limb of the totality principle.
Applicable law:
Criminal Appeals Act 2004 (WA) - 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.
Criminal Code Act Compilation Act 1913 (WA) - prohibits pursuing another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person.
Restraining Orders Act 1997 (WA) - provides that the maximum penalty for breach of a police order is a fine of $10,000 or imprisonment for 2 years, or both.
Sentencing Act 1995 (WA) - basis of declaring the appellant a serial family violence offender.
Musgrove v Millard [2012] WASC 60 - where the decision of EM Hennan J established that the total effective sentence received by the appellant infringed the first limb of the totality principle.
Dennis v Laternier [No 2] [2017] WASC 5 - where the decision of Jenkins J established that the total effective sentence received by the appellant infringed the first limb of the totality principle.
Smartt v Sloane[2019] WASC 35 - where the decision of Allanson J established that the total effective sentence received by the appellant infringed the first limb of the totality principle.
Bardsley v The Queen[2004] WASCA 251; (2004) 29 WAR 338 - where it was held that the court will grant an extension of time for appeal if it is in the interests of justice to do so.
Robertson v The State of Western Australia [2009] WASCA 83 - provided that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 - where it was held that he court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.
Kabambi v The State of Western Australia [2019] WASCA 44 - provided that the principles governing an appeal alleging that a sentence is manifestly excessive or that the total effective sentence infringed the first limb of the totality principle are well-established.
Babaro v The Queen[2014] HCA 2; (2014) 253 CLR 58 - where it was held that 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.
Pillage v Coyne[2000] WASCA 135; (2000) 1113 A Crim R 27 [13] - provides that in order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
Longbottom v The State of Western Australia[2008] WASCA 203; (2008) 38 WAR 396 - where 'when two offences of which an offender stands convicted contain common elements so that it would be wrong to punish that offender twice for the commission of the elements that are common', the sentences for those offences ought to be reduced in length or made partially concurrent so as to take into account the overlap between the elements.
Clarke v The State of Western Australia[2018] WASCA 190 - provides that whether a sentence infringes the totality principle is not answered simply by reference to other cases.
Analysis:
It is submitted that the appellant was convicted of three offences which were inextricably linked; that therefore, totality was a significant issue in the appellant's sentencing; and that the total effective sentence was unreasonable or manifestly unjust. The appellant was convicted on 26 March 2021 and sentenced on 28 May 2021. The time to commence this appeal expired on 25 June 2021. The appeal commenced out of time on 9 August 2021. The appellant requires an extension of time to appeal.
Explaining the delay, Ms Sinton deposes that on 31 May 2021, the appellant's former lawyer wrote to Legal Aid suggesting that it would be appropriate for the appellant to be granted aid for an opinion as to merit in an appeal. Ms Sinton deposed to aid having been granted on 15 July 2021; to a request for the sentencing transcript having been made on 23 July 2021 and it being received on 4 August 2021. The respondent does not oppose the granting of an extension of time and there is no evidence before the Court of any prejudice to the respondent if an extension of time is granted. The learned Magistrate observed that the appellant's criminal record revealed a history of similar type behaviour, which grounded his finding that there was a real and elevated need for specific deterrence in the appellant's case.
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances. There is also no tariff for an offence against s 61(2a) of the Restraining Orders Act (breach of a police order). The offending occurred after the appellant's then partner had contacted the appellant on 23 February 2021 and advised him that their relationship was over. The appellant breached the police order within 24 hours of having been served with the same and then repeatedly.
The conduct was deliberate and the breach cannot be characterised as minor or technical. A breach of a police order need not be repeated multiple times on the one charge to be considered serious. Other than the appellant guilty pleas, no other mitigatory factors were present.
Conclusion:
The Court concluded that the total effective sentence is not unreasonable or unjust. The Court is not persuaded that it infringed the first limb of the totality principle. The Court granted the application for extension of time to appeal as well as the leave to appeal. The Court ordered the dismissal of the appeal.
