Criminal law - Appeal against sentence - Appellant convicted after trial of assault occasioning bodily harm - Sentence of 18 months' immediate imprisonment - Manifest excess - Weighting errors - Failure to identify aggravating factors

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Ali v The State of Western Australia [2013] WASCA 55

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

Carrick v The State of Western Australia [2017] WASCA 175

Clarke v The State of Western Australia [No 2] [2013] WASCA 197

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

Fogg v The State of Western Australia [2011] WASCA 11

Holden v The State of Western Australia [2009] WASCA 50

Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Mourish v The State of Western Australia [2006] WASCA 257

Pedersen v The State of Western Australia [2010] WASCA 175

Skipworth v The State of Western Australia [2008] WASCA 64

The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v O'Kane [2011] WASCA 24

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

Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

1. REASONS OF THE COURT: The appellant appeals against sentence.
2. The appellant was charged on indictment with one count which alleged that on 7 November 2014, at Waterford, the appellant unlawfully did grievous bodily harm to Jordan Darryl Freeman, contrary to s 297(1) of the Criminal Code (WA) (the Code).4
3. The appellant admitted striking the complainant but alleged that he had acted in self-defence.
4. On 3 March 2017, after a trial in the District Court before Petrusa DCJ and a jury, the appellant was convicted of the alternative charge of assault occasioning bodily harm, contrary to s 317 of the Code.
5. On 3 May 2017, the trial judge imposed a sentence of 18 months' immediate imprisonment. The sentence was backdated to 3 March 2017. A parole eligibility order was made.
6. On 16 November 2017, this court heard the appeal. On 28 November 2017, the court ordered unanimously that leave to appeal be refused on grounds 2, 3, 4 and 5 and that the appeal be dismissed. We said that our reasons for judgment would be published at a later date. These are our reasons.

The facts and circumstances of the offending and the appellant's personal circumstances and antecedents

1. The facts and circumstances of the offending, as summarised by the trial judge in her sentencing remarks, were as follows.
2. On 7 November 2014 at about 4.30 pm, the complainant, who was aged 19, attended the Curtin University tavern with his friend, Thomas Harling, who was a student at the University. The complainant described his condition as 'tipsy'.
3. Between 7.30 pm and 8.30 pm, the complainant and Mr Harling were approached by the appellant and Adam McClure, who were security officers at the tavern. The appellant and Mr McClure observed the complainant and Mr Harling. They formed the view that Mr Harling was intoxicated and asked him to leave the premises. Mr Harling endeavoured, unsuccessfully, to persuade the appellant and Mr McClure to permit him to remain.
4. The appellant began to usher Mr Harling towards the exit of the tavern. They moved a short distance and stopped. Mr Harling renewed his request to remain. The appellant refused.
5. At that point, the complainant looked at the appellant and said words to the effect, 'you don't have to be cunts about it'.
6. The appellant responded by stepping back and then punching the complainant in the face. The force of the blow knocked the complainant to the ground. The appellant and Mr McClure seized the complainant and removed him from the premises. The latter part of the incident, including the punch, was captured on CCTV.
7. At the trial, there was some suggestion that the complainant had become increasingly argumentative, abusive and threatening towards the appellant. It was also asserted at the trial that the complainant had spat at the appellant immediately before the appellant had punched him. The appellant gave evidence that he had not deliberately struck the complainant, but had instinctively raised his arm to protect his face in response to the complainant having spat at him. Her Honour noted that the jury, by its verdict, had rejected the appellant's account of events. Her Honour expressed her agreement with the jury's rejection of his account.
8. Further, the trial judge found that the complainant did not spit at the appellant and, also, that the complainant did not behave in the manner alleged by the appellant and Mr McClure. Her Honour found that the complainant was not acting aggressively. She noted that this finding was consistent with the CCTV footage and with Mr Harling's evidence. Although she acknowledged that the complainant may have been assertive and robust in his efforts to persuade the appellant to permit Mr Harling to remain, her Honour was satisfied that the complainant did not threaten the appellant or spit at him.
9. The appellant's reaction to the complainant's use of a profanity was wholly disproportionate to what the complainant had said to him. The appellant's punch was forceful and unnecessary.
10. The offence committed by the appellant was a serious case of its kind given the degree of force that the appellant used and the seriousness of the complainant's injuries.
11. Initially, ambulance officers treated the complainant at the scene. He was then conveyed to hospital. Medical practitioners diagnosed displaced fractures of the nasal bones and the mid face extending to the orbits on both sides. A trapezoid segment of the bone around the nose and the nose itself had been displaced and pressed inwards.
12. On 20 November 2014, the complainant underwent surgery to realign the trapezoid segment and to straighten the nasal fractures. Several plates were inserted to facilitate the repositioning of the trapezoid segment.
13. The unchallenged evidence was that the degree of force necessary to cause the complainant's injuries was considerable and that he was fortunate not to have been injured more seriously.
14. Her Honour had regard to the complainant's victim impact statement and noted that the offence had significantly affected him.
15. The appellant was aged 25 at the time of the offending and was 27 when sentenced.
16. The appellant had a prior criminal record but it comprised traffic related matters. The trial judge treated him as a person of prior good character.
17. The appellant had a strong work ethic and good support in the community. He has a positive relationship with his partner.
18. Her Honour had regard to a number of written references as to the appellant's character. The authors of the references spoke well of him.
19. However, the trial judge had reservations about the appellant's assertion that he was remorseful. She noted that the author of the pre-sentence report had said that the appellant's expressions of regret appeared to be centred on the consequences for him. The appellant continued to claim, despite his conviction after trial, that the complainant was at risk of displaying violent behaviour. Nevertheless, her Honour gave the appellant credit for the regret he had expressed for causing pain and suffering to another person.

1. The appellant relies on five grounds of appeal.
2. Ground 1 alleges that the sentence was manifestly excessive.
3. Ground 2 alleges that her Honour erred in deciding that no sentence other than immediate imprisonment was appropriate. In particular, it is alleged that, in assessing the seriousness of the offence, her Honour:

(a) gave undue weight to the nature and extent of the complainant's injuries and the force of the blow by which those injuries were sustained; and

(b) gave insufficient or no weight to other relevant factors, including the circumstances immediately preceding the offence, the complainant's conduct in that context and the 'confined nature' of the offence.

1. Ground 3 alleges that her Honour failed to give sufficient weight to the appellant's personal circumstances and antecedents.
2. Ground 4 alleges that her Honour erred in 'failing to treat a term of imprisonment as a sentence of last resort'. In particular, it is alleged that her Honour:

(a) failed to give sufficient or any consideration to the appropriateness or otherwise of sentencing alternatives other than imprisonment; and

(b) failed properly to consider the appropriateness of a suspended term of imprisonment.

1. Ground 5 alleges that her Honour erred in imposing a sentence 'based upon aggravating features without identifying what those features were'.
2. On 6 October 2017, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on grounds 2, 3, 4 and 5 to the hearing of the appeal.
3. It is convenient, first, to consider grounds 2, 3 and 4 together, then ground 1 and, finally, ground 5.

1. Each of grounds 2, 3 and 4, as particularised, asserts in essence that the trial judge made weighting errors in relation to specific sentencing factors.
2. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet;[1] Dinsdale v The Queen;[2] Vagh v The State of Western Australia;[3] Pedersen v The State of Western Australia.[4] A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
3. In the present case, we are satisfied, on a fair reading of her Honour's sentencing remarks as a whole, that her Honour gave consideration and some weight to each of the specific sentencing factors referred to in grounds 2, 3 and 4 as particularised. The complaint in each of those grounds to the effect that her Honour failed to give adequate weight to the factors in question is without merit. No express appealable error exists because the extent to which her Honour had regard to the factors in question did not constitute a failure to exercise the discretionary power entrusted to her.
4. Grounds 2, 3 and 4 are without merit.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. Section 317(1) of the Code provides, relevantly:

Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -

(a) if the offence is committed in circumstances of aggravation ... to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years.

1. In the present case, no circumstances of aggravation were alleged against the appellant. The maximum penalty was therefore imprisonment for 5 years.
2. In Mourish v The State of Western Australia,[5] McLure JA (Steytler P & Wheeler JA agreeing) summarised the sentencing dispositions in various cases relating to the offence of assault occasioning bodily harm, contrary to s 317(1). Where the case was decided before the commencement of the transitional provisions, her Honour converted the sentences to post-transitional sentences and recorded the pre-transitional sentence in brackets. The relevant cases, as set out by her Honour, were these:

Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.

Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.

Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.

Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.

Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.

The State of Western Australia v Anderson [2004] WASCA 157 - the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.

Robinson v Smith [2005] WASC 99 - the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending [12].

The appeals in Robinson, Poletti, Mical, Harvey and Johnson were from decisions of magistrates who were unable to impose a term of imprisonment exceeding 2 years. Also, those cases (apart from Robinson) and the cases of Mitchell and Anderson involved pleas of guilty.

1. In Holden v The State of Western Australia,[6] Wheeler JA said that it is difficult to discern a 'tariff' for the offence of assault occasioning bodily harm because of the great variation in the circumstances in such cases. Her Honour added, however, that:

[I]n cases which have involved pleas of guilty, a post-transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].

1. We have had regard to numerous sentencing dispositions for offences against s 317(1) of the Code, without circumstances of aggravation, including the relevant dispositions in Mourish; The State of Western Australia v Camilleri;[7] Holden; Wiltshire v Mafi;[8] The State of Western Australia v Cheeseman;[9] Langdon v Kelemete-Leoli-McLean;[10] Ali v The State of Western Australia;[11] Clarke v The State of Western Australia [No 2];[12] Carrick v The State of Western Australia;[13] Allen v The State of Western Australia;[14] and the relevant decisions referred to in those cases.
2. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
3. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
6. By s 6(4) of the Sentencing Act 1995 (WA):

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

1. Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

1. Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
2. The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
3. The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
4. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
5. A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[15] Fogg v The State of Western Australia.[16]
6. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. See Dinsdale v The Queen.[17] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale [86].
7. In the present case, counsel for the appellant submitted that the appellant's offending, 'whilst objectively serious', was not a particularly serious example of offences of its type. Against that background, it was submitted that error by the trial judge in the sentence she imposed should be inferred.
8. We do not accept counsel for the appellant's submissions.
9. The degree of force used by the appellant in striking the complainant and the seriousness of the injuries which the complainant suffered were significant factors in evaluating the objective seriousness of the offence, whether the offending was a serious example of its kind and the appropriateness of a term of immediate imprisonment. The appellant was the aggressor. He used considerable force in striking the complainant. The appellant's action had the potential easily to cause even more serious injuries than the complainant in fact suffered. The absence of some of the aggravating factors that existed in previous cases does not mitigate the seriousness of what the appellant actually did.
10. Her Honour was entitled, on the basis of her unchallenged findings of fact, to characterise the appellant's offending as a serious example of its kind.
11. General deterrence was an important sentencing consideration. Violence in public places is a matter of genuine concern in the community.
12. The appellant was, of course, entitled to proceed to trial. However, he did not have the mitigation that a plea of guilty would have brought.
13. In our opinion, it was open to the trial judge to decide that the facts and circumstances militating against suspending the term of imprisonment decisively outweighed the facts and circumstances militating in favour of suspension. In particular, her Honour noted, correctly in our view, that the seriousness of the offence was such that 'only' a term of immediate imprisonment could be justified (ts 375). That observation indicates that her Honour was cognisant of other sentencing options, but was positively satisfied that it was not appropriate to select a lesser sentencing option (in particular, to suspend or conditionally suspend the term of imprisonment).
14. After taking into account:

(c) the objective facts and circumstances of the offending;

(d) the complainant's vulnerability in being struck suddenly and without warning and while adversely affected by alcohol;

(e) the standards of sentencing customarily observed;

(f) all mitigating factors referred to by her Honour, including the appellant's personal circumstances and antecedents; and

we are satisfied that the sentence of 18 months' immediate imprisonment was not unreasonable or plainly unjust.

1. It is not reasonably arguable that error by the trial judge in the exercise of her discretion should be inferred from the sentencing outcome.
2. Ground 1 fails.

1. The trial judge used the term 'aggravating features' once in her sentencing remarks. Her Honour said:

Taking into account the aggravating features and giving [the appellant] such credit for matters in mitigation as I can, I sentence [the appellant] to a term of 18 months' imprisonment (ts 375).

1. Section 7(1) of the Sentencing Act states that 'aggravating factors' are factors which, in the court's opinion, increase the offender's culpability.
2. Counsel for the appellant submitted that her Honour erred in sentencing the appellant on the basis of 'aggravating features' without identifying them and in circumstances where, given the facts and circumstances of the case, those features were 'arguably' absent.
3. It is true that the trial judge did not identify in her sentencing remarks any aggravating factors. However, in The State of Western Australia v O'Kane,[18] Pullin and Newnes JJA and Mazza J said:

It is the case that where a court reduces the sentence it would otherwise have imposed because of a mitigating factor it must state that fact in open court: s 8(4) Sentencing Act. However, where the court takes into account aggravating factors in determining the appropriate sentence there is no such requirement or any requirement specifically to identify the aggravating factors. As the appellant does not contend that the sentencing judge overlooked any relevant aggravating factors, this ground of appeal must fail.

Having said that, in our view it is desirable when sentencing an offender that the sentencing judge does specifically identify, as such, the aggravating factors (if any) which he or she is taking into account so that there can be no doubt as to what has been considered and they can be readily identified [46] - [47].

1. Accordingly, in the present case, her Honour did not make an error in taking into account aggravating factors without specifying them.
2. We are satisfied that the appellant's culpability was increased by the degree of force he used in gratuitously striking the complainant and, also, by the appellant's status as a security officer at the premises where the assault occurred.
3. Ground 5 is without merit.
4. In any event, even if (contrary to our opinion) there is any merit in ground 5, we are satisfied that it is not reasonably arguable that a different sentence should have been imposed on the appellant. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA); Abraham v The State of Western Australia.[19]

1. Leave to appeal on grounds 2, 3, 4 and 5 should be refused. The appeal must be dismissed.

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

[1] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).

[2] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ).

[3] Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).

[4] Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing).

[5] Mourish v The State of Western Australia [2006] WASCA 257.

[6] Holden v The State of Western Australia [2009] WASCA 50.

[7] The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394.

[8] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.

[9] The State of Western Australia v Cheeseman [2011] WASCA 15.

[10]Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368.

[11]Ali v The State of Western Australia [2013] WASCA 55.

[12] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.

[13] Carrick v The State of Western Australia [2017] WASCA 175.

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

[15] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).

[16] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).

[17] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).

[18] The State of Western Australia v O'Kane [2011] WASCA 24.

[19] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [80] - [81] (Buss JA; McLure P agreeing).