HOWARD -v- WA POLICE [2026] WASC 292

[2026] WASC 292 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : HOWARD -v- WA POLICE [2026] WASC 292 CORAM : GETHING J HEARD : 21 JULY 2026 DELIVERED : 22 JULY 2026 FILE NO/S : SJA 1022 of 2026 BETWEEN : ACQUINAS RAYMOND HOWARD Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE B COLEMAN File Number : PE 14619 of 2026 Catchwords: Criminal appeal - Appeal - Breach of protective bail condition - Appeal against suspended term of imprisonment - Whether sentence manifestly excessive -- 1 of 19 -- [2026] WASC 292 Page 2 Legislation: Bail Act 2002 (WA) s51(2a), s 51(6) Criminal Appeals Act 2004 (WA) s6, s7(1), s 8, s 9, s 14(2), s 39(1), s 40(1)(e) Sentencing Act 1995 (WA) s 6, s 39, s 76(2) Evidence Act 1906 (WA) s 39F(1) Result: Appeal allowed and sentence set aside Matter remitted to the Magistrates Court for resentencing Category: B Representation: Counsel: Appellant : Mr R Napper Respondent : Ms J Tower & Mr L Durtanovich Solicitors: Appellant : Aboriginal Legal Service Respondent : State Solicitor's Office Case(s) referred to in decision(s): Butler v The State of Western Australia [2012] WASCA 249 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Crotty v Director of Public Prosecutions [2025] WASC 233 Davies v Director of Public Prosecutions [2025] WASC 434 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Edgill v Maguire [2013] WASC 472 Goodchild v Director of Public Prosecution [2023] WASC 60 Hamlett v Whitney [2013] WASC 100 HNA v The State of Western Australia [2016] WASCA 165 IHS v Director of Public Prosecutions [2025] WASC 437 Kabambi v The State of Western Australia [2019] WASCA 44 Lawson v Director of Public Prosecutions [2024] WASC 218 Lawson v Director of Public Prosecutions [No 2] [2024] WASC 279 -- 2 of 19 -- [2026] WASC 292 Page 3 Marich v WA Police [2024] WASC 173 McKeagg v Director of Public Prosecutions [2021] WASC 457 Neach v Hobbs [2021] WASC 135 O'Brien v Narang [2018] WASC 376 Rijavec v WA Police [2025] WASC 243 Roberts v The State of Western Australia [2014] WASCA 239 Salkilld v The State of Western Australia [2017] WASCA 168 Sami v Duggan [2011] WASC 304 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Thompson v WA Police [2024] WASC 476 Wilson v The State of Western Australia [2025] WASCA 8 -- 3 of 19 -- [2026] WASC 292 GETHING J Page 4 GETHING J: 1. Introduction 1 On 1 March 2026, the Appellant, Acquinas Raymond Howard, was sentenced by a Magistrate to a term of imprisonment of 8 months, suspended for 12 months, for the offence of breaching a protective bail condition contrary to Bail Act 2002 (WA) (BA) s 51(2a) (Sentence). 2 On 26 March 2026, the Appellant filed an appeal notice (Appeal) in relation to the Sentence on the grounds that: (a) the Magistrate imposed a sentence that was excessive; and (b) the Magistrate erred by taking into account an irrelevant consideration. 3 On 13 April 2026, the Respondent filed a notice informing the court that the Respondent intended to take part in the appeal. In accordance with the usual practice of the Supreme Court, in this decision the name of the Respondent was changed from the individual police officer who commenced the prosecution to WA Police. 4 The materials before this court include the transcript of the sentencing hearing on 1 March 2026 (MC Transcript). 5 The Appellant filed submissions on 8 June 2026 (Appellant's Submissions). 6 The Respondent filed submissions on 24 June 2026 (Respondent's Submissions). The Respondent conceded that the sentence imposed by the Magistrate was excessive. 7 The Appeal was heard by me on 21 July 2026. At the hearing, I informed the parties that I considered that the Respondent's concession was properly made and that I was satisfied that the sentence was manifestly excessive. Accordingly, I granted leave to appeal on ground 1 and set aside the Sentence. In the particular circumstances of this case, I remitted the matter back to the Magistrate's court for resentencing. 8 My reasons for doing so follow. -- 4 of 19 -- [2026] WASC 292 GETHING J Page 5 2. Proceedings in the Magistrates Court The facts 9 The index offence for which the protective bail condition was in place was one of impede breathing and aggravated common assault. The complainant was his domestic partner (Complainant). Both charges involved the circumstance of aggravation that the Appellant was in a family relationship with the Complainant. 10 The Appellant was released on bail on 12 January 2026. The protective bail condition was that the Appellant was not to approach within 50 metres of the Complainant, or where she lived or worked and not to contact her, or attempt to contact her, by whatever means. 11 On 28 February 2026, police attended the Complainant's home address in Thrall Street, Innaloo, to serve a summons. Police ascertained that the Appellant was within the house at that time. They gained entry and arrested the accused in the backyard of the neighbouring property. The Appellant, when he was arrested, was within 50 metres of the Complainant and her home address. As police walked the Appellant to the vehicle, he and Complainant spoke and interacted. Police cautioned the Appellant. He made admissions to being in breach of protective conditions. He said, 'I'm not to be within 50 metres of her'. 12 The Appellant pleaded guilty to, on 28 February 2026 at Innaloo, failing to comply with a condition of his bail undertaking by failing to comply with a protective bail condition. This plea was entered at the first mention, which was on Sunday 1 March 2026, the morning after the offending occurred. Prosecution Submissions 13 The prosecutor informed the Magistrate that there were a number of other breaches of protective bail conditions which were 'working their way through the system'.1 14 The prosecutor also said:2 … if your Honour is minded to deal with it today, I would just put Mr Howard on notice that if he breaches protective conditions again, 1 MC Transcript, page 3. 2 MC Transcript, page 3. -- 5 of 19 -- [2026] WASC 292 GETHING J Page 6 the prosecution would formally seek to revoke all bail on all outstanding charges. Appellant's criminal record 15 As at 1 March 2026, the Appellant's criminal record consisted of: (a) a conviction on 2 October 2025 for driving with a prescribed illicit drug, for which he was fined $500; (b) a conviction on 16 February 2022 for driving with a blood alcohol concentration exceeding 0.08 grams of alcohol per 100 ml of blood, for which he was fined $1,700 and disqualified from driving for 10 months; (c) a conviction on 16 February 2022 for driving 45 km/h or more above the speed limit, for which he was fined $1,500 and disqualified from driving for 6 months; and (d) a conviction on 2 April 2002 for driving with a blood alcohol concentration exceeding 0.08 grams of alcohol per 100 ml of blood, for which he was fined $500 and disqualified from driving for 3 months. Defence submissions 16 The Appellant was represented by counsel. 17 Counsel invited the court to sentence the Appellant on the basis that he was of prior good character. This was because, to that point, he only had traffic offences on his record, though counsel conceded that 'may not be the case on the next occasion if it happens again'.3 18 The plea in mitigation was succinct:4 He's currently on Centrelink. He says that on the day he was actually – he's saying he was invited over by her, and that's why he was there at the house around nearby. He's not disputing having attempted to speak to her. They have one daughter together – sorry, he has one daughter. He pays – does put some money towards his daughter, but he essentially says that he is the carer for the complainant. So she has got quite a few mental health problems. He has done his best to try keep her supported. While these conditions – it has been quite difficult for him, but prior to that he has been her – his – her responsibility. 3 MC Transcript, page 3. 4 MC Transcript, page 4. -- 6 of 19 -- [2026] WASC 292 GETHING J Page 7 The Magistrate's decision 19 The Magistrate's decision was in the following terms:5 Mr Howard, you come before the court for a breach of protective bail conditions alleged to have occurred yesterday by being present with the complainant at her address or at an address. Any sentence I impose must be considered taking into account the seriousness of the offence. That's determined by the maximum penalty, which is $10,000 and/or up to three years imprisonment, the circumstances of the offence, including the vulnerability of any complainant and any aggravating and mitigating factors. I cannot use a more serious sentencing option unless I'm positively satisfied it's not appropriate to use a less serious sentencing option. With respect to this allegation, you have accepted this allegation, and it is in the context of you having a very limited criminal history. However, there's further allegations, and I accept they are, at this stage, only allegations, three other separate allegations that you have breached the protective bail conditions related to the complainant and the principal offence the subject of the protective bail is an allegation that is very serious. It's a domestic violence allegation, and, clearly, there is no doubt that the complainant protected person is a very vulnerable person. Your breach is a very serious breach because you are found in the presence of the complainant in circumstances where you are not allowed to have any contact with her at all. It is a very serious allegation for which I have reached the point where a term of imprisonment is the only appropriate disposition, taking into account her vulnerability. I accept that it is a sentence of last resort, the imprisonment. Now, because you have never been in trouble of this type before, you are otherwise a person of good character, and you don't have any criminal history that is relevant – of course, criminal history can never be an aggravating factor, but it does demonstrate to me, of course, that you don't usually offend in this way, and that is the reason why I've decided that the imprisonment order that I impose upon you today is going to be wholly suspended. In addition, I've granted you a 25 per cent discount for your plea of guilty at the earliest opportunity. The reason why I'm placing you on the suspended imprisonment order is because I consider it is the only way that you are going to comply with your protective bail conditions, all right, because you know that if you breach this order – I'm going to tell you very carefully. If you are found in company with the complainant protected person again, or you phone her or you email her or contact her in some way, you will breach this suspended imprisonment order, and 5 MC Transcript, pages 4 - 6. -- 7 of 19 -- [2026] WASC 292 GETHING J Page 8 then you would need to show reasons why it would be unjust for you to serve all or part of this term. I consider it is the only way that I can ensure that you are going to comply with your protective bail conditions until your trial date, all right? ACCUSED: Understood, your Honour. HER HONOUR: So the term of imprisonment, including the discount, is going to be eight months, and I will wholly suspend that for a period of 12 months. All right. Now, this is the position. If, over the next 12 months, you commit any offence that carries a term of imprisonment, and some traffic matters carry terms of imprisonment, you will breach this suspended imprisonment order. But, most importantly, if you are located again in the presence of the complainant, and you are charged again with breaching protective bail, and you are convicted, you will almost certainly be required to serve at least part of this suspended imprisonment order, all right? ACCUSED: Yes. Understood. HER HONOUR: So do you understand that? ACCUSED: Yes, your Honour 3. The Appeal 20 A decision of a court of summary jurisdiction to impose a sentence may be appealed to the Supreme Court by a person aggrieved on the grounds that, relevantly, the sentence was excessive or that there has been a miscarriage of justice.6 The appeal may be made even if the decision under appeal was made after a plea of guilty.7 21 The court must decide the appeal on the evidence and material that were before the Magistrate.8 The court has the power to 'admit any other evidence' for the purposes of determining the appeal.9 Neither party sought to admit further evidence, so the appeal will be determined on the evidence and material before the Magistrate. 22 Leave to appeal is required for each ground of appeal.10 The court must not give leave to appeal on a ground of appeal 'unless it is 6 Criminal Appeals Act 2004 (WA) s 6(f), s 7(1) and s 8(1) (CA Act). 7 CA Act s 8(2). 8 CA Act s 39(1). 9 CA Act s 40(1)(e). 10 CA Act s 9(1). -- 8 of 19 -- [2026] WASC 292 GETHING J Page 9 satisfied the ground has a reasonable prospect of succeeding'.11 The means that the ground 'is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success'.12 Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.13 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.14 23 By orders made on 18 May 2026, the question of leave to appeal was referred to the hearing of the Appeal. 24 Even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.15 That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the Court determines that a different sentence should have been imposed.16 4. Ground 1 25 The foundational principles governing sentencing in this State are set out in the Sentencing Act 1995 (WA) (SA). The sentence imposed must be commensurate with the seriousness of the offence.17 The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence (including the vulnerability of any victim of the offence), any aggravating factors and any mitigating factors.18 There is a hierarchy of sentencing options.19 A court must not use a sentencing option unless satisfied that it is not appropriate to use any of the lesser sentencing option.20 The most severe option is a term of imprisonment.21 A court must not impose a sentence of imprisonment 11 CA Act s 9(2). 12 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (the court); IHS v Director of Public Prosecutions [2025] WASC 437 [21] (Lundberg J); Davies v Director of Public Prosecutions [2025] WASC 434 [27] (Lundberg J). 13 CA Act s 9(3). 14 Sami v Duggan [2011] WASC 304 [38] (Simmonds J); Rijavec v WA Police [2025] WASC 243 [84] (Seaward J); Crotty v Director of Public Prosecutions [2025] WASC 233 [15] (Palmer J). 15 CA Act s 14(2). 16 Roberts v The State of Western Australia [2014] WASCA 239 [47] (the court); Miller v WA Police [2026] WASC 180 [20] (McGrath J) (Miller). 17 SA s 6(1). 18 SA s 6(2). 19 SA s 39(2). 20 SA s 39(3). 21 SA s 39(2)(h). -- 9 of 19 -- [2026] WASC 292 GETHING J Page 10 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.22 A conditional suspended term of imprisonment is the next most serious option, followed by a term of imprisonment suspended without conditions.23 A sentence of suspended imprisonment should not be imposed unless a term of immediate imprisonment of the same length would be appropriate.24 26 A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long.25 27 The principles governing an assertion of manifest excess were recently summarised by the Court of Appeal in the following terms:26 The principles governing a complaint of manifest excess are well established. The determinative question is whether, after considering all the circumstances relevant to the sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed is unreasonable or plainly unjust… To determine whether a sentence is manifestly excessive, it is necessary to consider the sentence from the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender… When applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed 'as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies'…. 28 Where a sentence is said to be manifestly excessive as to type, the question for the appeal court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and in all the circumstances, to be positively satisfied that all the 22 SA s 6(4). 23 SA s 39(2)(f), (g). 24 SA s 76(2). 25 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J); Miorada v State of Western Australia [2022] WASCA 143[10] (the court); Miller. 26 Sym v The State of Western Australia [2026] WASCA 96 [103] - [105] (the court) (references omitted) (Sym). See also: Watts v The State of Western Australia [2026] WASCA 83 [121] (Hall JA, with whom Vaughan and Seaward JJA agreed on this point [24]) (Watts). -- 10 of 19 -- [2026] WASC 292 GETHING J Page 11 sentencing options listed before that type of sentence in SA s 39(2) were not appropriate.27 29 I begin the analysis of the factors identified in [27] and [28] with maximum penalty for the offence. This was a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.28 30 The offence was a serious one. The conditions imposed were designed to protect the Complainant from the risk of further violence.29 This is in the context of legislative recognition that 'it is not uncommon for a decision to leave an abusive partner, or to seek assistance, to increase apprehension about, or the actual risk of, harm'.30 Protective bail conditions also protect the integrity of the trial process.31 Further, as the breach involved a disregard for a court order, there is a clear need for the sentence to give weight to general deterrence.32 31 The conduct of the Appellant was at the lower end of seriousness for an offence of this type. The breach was the Appellant being in company with the Complaint inside her home contrary to his condition not to approach within 50 metres of her or her residence. The prosecution did not contest the defence submission that the Appellant attended the Complainant's house at her invitation. The breach did not involve any violence, threat of violence or further instance of the conduct for which the Appellant was on bail.33 Nor did it involve any action that was threatening, abusive, manipulative or coercive towards the Complainant.34 Nor was the offending part of a deliberate and sustained course of conduct.35 32 As to the personal circumstances of the Appellant: (a) he was 44 years old at the time of the offending; 27 OAI v State of Western Australia [2022] WASCA 110 [8] (the court); HNA v State of Western Australia [2016] WASCA 165 [30] (the court) (HNA). 28 BA s 51(2a), s 51(6). 29 Thompson v WA Police [2024] WASC 476 [77] (Seaward J) (Thompson). 30 Evidence Act 1906 (WA) s 39F(1)(b)(v). 31 Neach v Hobbs [2021] WASC 135 [30] (Archer J) (Neach). 32 Thompson [81] - [82]; Lawson v Director of Public Prosecutions [No 2] [2024] WASC 279 [89] (Forrester J); Neach [51]. 33 See for example: Thompson [77]; McKeagg v Director of Public Prosecutions [2021] WASC 457 [70] (Solomon J) (McKeagg); Bropho v Hall [2015] WASC 50 [51] (Mitchell J). 34 See for example: Thompson [86]; McKeagg [70]. 35 See for example: Lawson v Director of Public Prosecutions [2024] WASC 218 [57] (Fiannaca J); Thompson [85]. -- 11 of 19 -- [2026] WASC 292 GETHING J Page 12 (b) his criminal record comprised only traffic offences for which he had been fined or received disqualifications, so he did not have any prior convictions for similar offending; and (c) he was otherwise a person of good character. 33 His plea of guilty was plainly at the first reasonable opportunity, so was appropriately afforded a 25% discount.36 However, this meant that the Magistrate was of the view that, in the absence of a plea of guilty, the appropriate head sentence would have been one of 10 months and 20 days. His early plea also demonstrated an acceptance of responsibility.37 The fact that he pleaded guilty is also relevant to the type of sentence to be imposed.38 34 I turn then to the standards of sentencing customarily observed with respect to this type of offending. As the Court of Appeal observed in Kabambi v The State of Western Australia:39 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. 35 In Marich v WA Police,40 the appellant pleaded guilty to one count of breaching a protective bail condition and one count of breaching a family violence restraining order (FVRO). Both arose from the same conduct. The appellant was seen by police entering the protected person's address. Police attended the address and were met by the protected person at the front door. Upon entering, the police located the appellant in the lounge room approximately 10 metres from the protected person. The appellant was on an intensive supervision order at the time. Counsel explained that the appellant had ran into the protected person who needed money for food. The appellant decided to assist her and walk the shopping home. The Magistrate imposed a term of imprisonment for the breach of protective bail of 7 months and a 36 SA s 9AA. 37 Wilson v The State of Western Australia [2025] WASCA 8 [46] (Buss P and Mazza JA) citing Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [22] (Gaudron, Gummow and Callinan JJ). 38 Goodchild v Director of Public Prosecution [2023] WASC 60 [59] (Derrick J). 39 Kabambi v The State of Western Australia [2019] WASCA 44 [21] (judgment of the court); Watts [24] (Vaughan and Seaward JJA); [121] (Hall JA). 40 Marich v WA Police [2024] WASC 173 (Forrester J) (Marich). -- 12 of 19 -- [2026] WASC 292 GETHING J Page 13 period of 4 months for the breach of FVRO. The terms were concurrent and suspended for 6 months. Forrester J on appeal described the 7 month sentence as 'severe', but nevertheless within the sound exercise of the Magistrate's discretion. Additionally, while her Honour found that the Magistrate overlooked the plea of guilty and afforded a 20% discount in her re-sentencing exercise, her Honour found that she would have imposed the same sentence. 36 Marich has factual similarities with this matter. In both matters, the offender has asserted that they provided friendly assistance to the protected person, including by entering their home. A less serious feature of Marich is that he encountered the protected person by chance. However, Marich was aggravated by the fact that there was a significant need for personal deterrence because the offender was subject to an intensive supervision order and had an extensive criminal history that included breaches of similar court orders. Further, the appellant in Marich was not invited to the protected person's home but rather simply chose to accompany her. Nonetheless, Forrester J's characterisation that the sentence of seven months (suspended) imprisonment was 'severe', but within range, supports a conclusion that the current sentence was excessive. 37 In Neach, the appellant pleaded guilty to one breach of protective bail conditions. The appellant was prohibited from contacting, approaching or remaining within 20 metres of the protected person. The appellant was in company with the protected person when they began arguing. The protected person ran away while calling police. The appellant chased the protected person through the CBD until she encountered police and pointed the appellant out who was approximately 30 metres from of her. The appellant was heavily intoxicated. Counsel for the appellant submitted that the protected person was following the appellant and he initially tried to walk away but ultimately pursued her. The Magistrate imposed a 6 month and 1 day term of imprisonment, suspended after 1 month. Archer J allowed the appeal on the basis that the Magistrate overlooked the plea of guilty and therefore failed to afford a discount. In re-sentencing, it was noted that the appellant had breached several court orders. Her Honour was of the view that imprisonment was not the only appropriate disposition and ultimately imposed a $300 fine. 38 The offending in Neach was more serious than the current matter as it involved an argument and an extended pursuit of the protected person. In that matter, it was undisputed that the protected person had -- 13 of 19 -- [2026] WASC 292 GETHING J Page 14 initiated the contact. In Neach there was a heightened need for personal deterrence given the breach occurred the day after he was released on bail and he had a history of violent offending and breaching court orders. The appellant was re-sentenced at a time that he had already spent 13 days in custody. Justice Archer's conclusion that a fine was an appropriate sentence supports the view that the Appellant's sentence in this matter was manifestly excessive. 39 In O'Brien v Narang, the appellant was sentenced for domestic violence offences including two offences of breaching protective bail conditions.41 The first breach of protective bail conditions is of less comparative assistance as the facts were serious, including a prolonged physical assault. The second breach related to the appellant being with the complainant in her home. Police had attended and located him hiding in a wardrobe in the master bedroom. Police had to force entry to the premises as a result of the appellant and the complainant not opening the door to police. The appellant entered an early plea of guilty. He had a criminal record that included violent offending and multiple convictions for breaches of bail and violence restraining orders. He was sentenced to four months' imprisonment (concurrent) for each breach. The grounds of appeal related to the discount for the plea of guilty and not taking into account time spent in custody. On appeal the length of the individual sentence was undisturbed, although it was backdated to account for previous time in custody. Justice Jenkins commented that the first breach was serious because it was accompanied by an assault and the sentence was somewhat lenient. The second offence was serious given he deliberately hid from the police. The breaches were not fleeting. 40 The second breach in O'Brien, for which the offender was sentenced to four months imprisonment, has similar features to the current offending as it involved police locating the appellant within the protected person's home. It did, however, have more serious features, including the appellant hiding from police and the appellant's prior offending. Therefore, this case supports the inference that the current sentence was excessive. 41 In Salkilld v The State of Western Australia,42 the appellant had pleaded guilty to 21 offences, including threatening to kill, eight breaches of a violence restraining order and seven breaches of protective bail conditions. The appellant received a 6-month term of 41 O'Brien v Narang [2018] WASC 376 (Jenkins J) (O'Brien). 42 Salkilld v The State of Western Australia [2017] WASCA 168 (the court) (Salkilld). -- 14 of 19 -- [2026] WASC 292 GETHING J Page 15 imprisonment for each breach of protective bail, one of which was made cumulative. He argued on appeal that the term made cumulative was manifestly excessive. The offending arose in the context of a short domestic relationship and involved repeated threatening and abusive communications, including threats to shoot or kill the protected person. The appellant also rode an off-road motorcycle onto the verge of the protected person's house, performed a burnout, and rode past the house several times while the protected person was inside. The Court dismissed the ground. 42 The offending in Salkilld was far more serious than the current matter and included a strong need for personal deterrence in light of the appellant's criminal history. The relevant breach was not viewed in isolation. It formed part of a broader course of deliberate, threatening and intimidating conduct involving repeated breaches of court orders. The fact that the sentence of 6 months imprisonment was undisturbed on appeal supports the conclusion that the current sentence was too high. 43 In Edgill v Maguire,43 the appellant pleaded guilty to one breach of protective bail conditions. He was sentenced to a term of imprisonment for 6 months and 1 day. The appellant was at Railway Parade in Midland with his family who had gathered to participate in bereavement ceremonies for the appellant's brother. The appellant and protected person were found by police standing about 10 metres away from each other involved in an argument. There was no evidence as to who initiated the communication, what it involved or that the appellant had deliberately breached the conditions. The appellant was sentenced on the basis that he was engaged in communication with the protected person contrary to his protective bail conditions. The appellant had an extensive history of breaching court orders. Hall J found that the sentence was manifestly excessive and re-sentenced the appellant to a $300 fine. His Honour took into account that the appellant had served a considerable portion of the sentence prior to the appeal. 44 The offending in Edgill was less serious than the current offence. The appellant did not intentionally set out to breach the protective bail conditions. Further, the breach involved the protected person attending the funeral and the appellant feeling obliged to remain for cultural reasons. However, the appellant in Edgill had an extensive criminal record including breaches of court orders. Given the dissimilar 43 Edgill v Maguire [2013] WASC 472 (Hall J) (Edgill). -- 15 of 19 -- [2026] WASC 292 GETHING J Page 16 sympathetic factual circumstances, Edgill is of limited comparative assistance. 45 In Hamlett v Whitney,44 the appellant pleaded guilty to a breach of protective bail conditions which attracted a sentence of 4 months imprisonment. That individual sentence was not challenged on appeal, the issue being whether the other offending justified a total effective sentence of 6 months and 1 day. The facts were that the offender had entered the Centrelink offices in Geraldton and saw the protected person talking to a staff member. He raised his arm, pointed at the protected person and began yelling obscene and threatening language at her. The protected person moved behind a member of staff and collapsed in tears. The offender then walked towards her and continued to use threatening and abusive language. He came within five metres of the protected person. He was then instructed to leave the building. He did so while continuing to yell abuse at the protected person. A short time later he removed his shirt and attempted to re-enter the building. Staff in the Centrelink office had locked the entrance doors. The appellant continued to use threatening and abusive language while attempting to re-enter the premises. Police were called and the appellant was arrested. 46 The offending in Hamlett was significantly more serious than the present case. While the interaction was a chance encounter, it involved persistent threatening and obscene language, physical intimidation and an appellant who had a history of failing to comply with court orders, including bail conditions. Hall J described the 4 month sentence as being on the 'lenient' end of the discretionary range.45 However, given the much more serious circumstances, Hamlett supports the conclusion that the current sentence outside the discretionary range. 47 Butler v The State of Western Australia involved several domestic violence offences, including a breach of protective bail conditions.46 The appellant had been in a long-term relationship with the protected person. With the consent of the protected person, the appellant went to the protected person's house to collect some personal items. The appellant stayed the night with the protected person's permission. When asked by the protected person to leave, the appellant refused to do so. The protected person called the police. The appellant 44 Hamlett v Whitney [2013] WASC 100 (Hall J) (Hamlett). 45 Hamlet [28]. 46 Butler v The State of Western Australia [2012] WASCA 249 (Mazza JA, McLure page and Buss JA agreeing) (Butler). -- 16 of 19 -- [2026] WASC 292 GETHING J Page 17 left the unit until police had come and gone, and then returned, smashing down a locked door to get inside. The appellant then violently assaulted the protected person. Police were called and the appellant left the house. The appellant was sentenced in the District Court to an individual term of 6 months' imprisonment for the breach of protective bail conditions. The grounds of the appeal to the Court of Appeal included that the total effective sentence infringed the totality principle, but there was no specific appeal against the individual sentence for the breach of protective bail conditions. The appeal was dismissed. 48 The facts of the breach in Butler were considerably more serious than in the present case. The appellant had a significant criminal record for domestic violence offending and breaching court orders. Although the appellant in Butler entered the property in the first instance with the consent of the protected person, his refusal to leave and subsequent break and violent assault are more far serious features. Although the Court of Appeal did not consider the appropriateness of the 6 month sentence for the breach of protective bail conditions, the decision is an example of the standard of sentencing customarily imposed. The decision does not undermine the assertion that the sentence imposed in the present case was manifestly excessive. 49 Looking at all these cases together, and considering the other factors which I have set out at [29] to [33], I do not consider that it was reasonably open to the Magistrate to be positively satisfied that all the sentencing options listed in SA s 39(2) before a suspended term of imprisonment were not appropriate. The sentence imposed was unreasonable or plainly unjust and so was excessive. 50 I grant the Appellant leave to appeal on ground 1 and uphold the ground. The Respondent's concession was properly made. 5. Ground 2 51 As the Appellant was successful on ground 1, there is no need for the court to deal with count 2. -- 17 of 19 -- [2026] WASC 292 GETHING J Page 18 6. What final order should be made? 52 This is not a case in which the appeal, although successful, should be dismissed on the basis that no substantial miscarriage of justice has occurred.47 The Appeal should be allowed and the Sentence set aside.48 53 Ordinarily, where there is a successful appeal of sentence, this court would proceed to resentence the Appellant.49 54 However, counsel for the Appellant submits that, in the circumstances of this Appeal, the appropriate order is to remit the matter to be dealt with by the Magistrates Court.50 Counsel for the Respondent agrees. On an appeal against a sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.51 A lot has occurred. In particular, the Appellant has now pleaded guilty to a number of charges and is currently listed for sentence on 14 August 2026 in the Magistrates Court in Perth. In my view, the Magistrates Court is better placed than this court to re-sentence the Appellant with full knowledge of all relevant offending and to apply totality considerations. 55 For these reasons, on 21 July 2026, I made orders that: 1. The Appellant have leave to appeal on ground 1. 2. The appeal be allowed on ground 1. 3. The sentence imposed on PE 14619/2026 be set aside. 4. The matter be remitted to the Magistrates Court at Perth for rehearing on 14 August 2026. 5. There be no order as to costs. 47 CA Act s 14(2). 48 CA Act s 14(b), (c). 49 CA Act s 14(d). 50 CA s 14(1)(e). 51 CA s 14(5). See for example: PHE v The State of Western Australia [2025] WASCA 166 [32] - [34] (the court). -- 18 of 19 -- [2026] WASC 292 GETHING J Page 19 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CC Associate to the Hon Justice Gething 22 JULY 2026 -- 19 of 19 --