BILLINGTON -v- DEPETRO [2018] WASC 171 (11 June 2018)

1. The learned magistrate erred by failing to suspend the term of 9 months' imprisonment imposed on the appellant having regard to:

(e) that there was no permanent physical disability or injury sustained by the victim.

1. The learned magistrate erred by finding that the appellant had no treatment needs as a determining factor in declining to suspend the sentence.
2. Although at first instance it was submitted on behalf of the appellant that a fine would be an appropriate sentence, that submission was not maintained on appeal. The appellant accepts that it was open to the learned magistrate to impose a term of imprisonment, but he argues that, in all of the circumstances, any term of imprisonment should have been suspended.
3. As argued, Ground 1 alleges the sentence was manifestly excessive in respect of both the length of the term of imprisonment imposed and the fact that the term was not suspended.
4. As argued, Ground 2 is in effect an alternative to Ground 1, in that it alleges error in respect of the magistrate's exercise of discretion not to suspend the sentence, if the court is not satisfied that the length of the term was manifestly excessive. However, in essence it still relies on a contention that the result (a term of imprisonment to be served) was manifestly excessive. It does not identify an express error.
5. Ground 3 alleges a specific error of law in the manner in which the magistrate exercised that discretion, namely that her Honour regarded the appellant's lack of treatment needs as determinative of whether it was appropriate to suspend the term of imprisonment she imposed.
6. For the reasons that follow, I would grant leave in respect of each ground of appeal, but I would dismiss the appeal.

1. Section 8 of the Criminal Appeals Act provides the grounds on which an appeal may be made from a decision of the Magistrates Court. Relevant to these proceedings, it provides that an appeal may be made on the ground that the magistrate made an error of law[4] or imposed a sentence that was excessive.[5]
2. The law as it relates to appeals against sentence is well settled and was not in dispute in this case. Although s 8 of the Criminal Appeals Act provides specific grounds on which an appeal may be brought, the principles that apply in appeals against sentences imposed in superior courts[6] also apply in appeals brought under Pt 2 of the Criminal Appeals Act. Accordingly, an appellant must establish that the sentencing discretion has miscarried at first instance. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.[7] The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of discretion, to impose the sentence she imposed.
3. Although s 8(1)(a)(iii) refers to 'a sentence that was excessive', appeals that rely on that ground almost invariably (as in this case) refer to 'manifest excess', which is the formulation used in the authorities and reflects the underlying principles.[8] A claim of manifest excess is a claim of implied error. The sentence must be shown to be unreasonable or plainly unjust.[9] The excess must be plainly apparent.[10]
4. In determining whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed, the place which the criminal conduct occupies on the scale of seriousness for the offence in question and the personal circumstances of the appellant.[11]
5. A sentence can be manifestly excessive because the wrong type of sentence was imposed (for instance, custodial rather than noncustodial).[12] Ground 2 in this case alleges an error of that kind.
6. The standards of sentencing customarily imposed will usually be discerned from an examination of comparative cases. Such cases provide a yardstick by which the object of broad consistency in sentencing might be achieved, but do not fix a range of what is an appropriate exercise of the sentencing discretion in any particular case.[13]

1. Grounds 1 and 2 require consideration of the facts on which the appellant was sentenced, as they inform the seriousness of the offence.
2. The facts were outlined by the magistrate in her sentencing remarks. The appellant does not challenge those findings of fact. The appeal must be determined, therefore, on the basis of those facts. They were as follows:[14]

(1) At 10.40 pm on Friday, 18 August 2017, the appellant was at the front of the Niche Bar in Leederville. He was standing on the pavement by the car park in company with a male friend.

(2) A short time later the complainant, MD, in company with a female, came out of the bar and stood nearby to the appellant and his friend.

(3) The appellant's associate was heard to call out to the female witness several times.

(4) The female witness responded, telling the appellant's associate she had a boyfriend and to leave her alone.

(5) The complainant and the female witness moved away from that area and the appellant and associate, walking towards another car park.

(6) The appellant's associate followed the complainant and female witness and was heard to make further comments to her.

(7) The female witness turned and told the appellant and his male associate[15] to leave them alone. The appellant was walking a few metres behind his associate when this was happening.

(8) The female witness pushed out at the friend of the appellant.

(9) The complainant stepped forward towards his partner and this male friend of the appellant.

(10) It is said by the defence that the appellant then stepped forward and struck the complainant with force to the left side of his head. (Her Honour went on to reject the defence description that the appellant stepped forward, finding instead that the appellant rushed in from the side and forcibly punched the complainant: ts 7, 10/1/18; see [20] below.)

(11) The complainant fell, causing his head to strike the road, rendering him unconscious.

(12) The appellant and the male associate left the immediate area, walking off in the direction of Oxford Street.

(13) The female witness and the passers-by came to provide medical attention, waited for the ambulance.

(14) An ambulance did take the complainant to Royal Perth Hospital, and he was treated at hospital for his concussion, a cut to the back of his head. Apparently he also had an injury to his chin. (Later, when referring to the complainant's victim impact statement, her Honour noted that he had also suffered a 'slight brain bleed' that required ongoing monitoring: ts 8, 10/1/18.)

1. Her Honour also noted that the defence had said 'the accused struck the complainant with significant force to the left side of his head, and that rendered him unconscious.'[16] Her Honour said:[17]

Hence, I'm not sure whether it was, in fact, the punch itself that made him unconscious or whether it was the falling to the ground and subsequently contact with the pavement that did that.

1. The magistrate made the following specific findings that were relevant to her assessment of the seriousness of the offence:[18]

[I]n this case we also have the benefit of the CCTV footage, which gives an objective view of this event. The CCTV footage was made available and has been viewed by the court and was played on the last occasion in court. I have obviously taken the opportunity to view the CCTV footage more closely in my office. Having viewed that CCTV footage, it is clear that the accused's friend is harassing the woman outside the club. It is also clear that she has no interest in him, and it is clear that she is asking him to move away and wanting to have no contact with him or conversation with him.

The accused's friend continually approaches the woman, and the accused is a couple of steps behind him during this interaction. It is clear that all of the interaction is with the accused's friend and this woman and her partner, and the accused does not seem to be involved in any way, shape or form in that interaction. The complainant at no time does anything to suggest he is about to fight the accused's friend. He steps forward to be next to his partner, and at that point on the CCTV footage the accused is seen to rush in from the side and forcibly punch the complainant.

I cannot agree with the defence view of the facts, where they simply said the accused stepped forward. Certainly, the accused is seen on the CCTV footage to rush over and punch the complainant with some speed and force. There had been no prior engagement between them, and the complainant would have had no reason to expect that the accused would rush from the side and punch him, and in those circumstances the complainant had no opportunity to protect himself from this blow.

According to the submissions filed by the defence, the accused was the least intoxicated of the two, and there are a number of points in this circumstance where he could have intervened and the outcome could have been quite different. Simply, he could have intervened with his friend, who he was well aware was behaving poorly and well aware of his intoxication, and taken him from the scene so that this would never have happened. The accused acted impulsively in response to what he says was a perceived threat to his friend. However, on the CCTV footage, as I've said, objectively there was no threat. He approached, and what happened was basically unjustified violence on his part.

The other serious aspect to this offending was the callous disregard and the lack of remorse he displayed after punching the complainant. The accused leaves the complainant on the ground, to be assisted by other people, and he simply walked off with his friend with a casual glance over his shoulder towards that group as he moved away. Clearly, the accused at that stage knew what he had done and the possible consequences, but he chose to continue to walk away from the situation and he did not render any assistance.

1. I have also watched the CCTV footage and, in my opinion, it was open to her Honour to make those findings. They have not been challenged on appeal. The merits of the appellant's Grounds 1 and 2 must be considered in the context of those factual findings.
2. The appellant noted in his written submissions that, at the sentencing hearing, it was put on his behalf that he 'had told his friend to go over to the victim and his companion and apologise for his conduct', but there was no reference to that matter in the magistrate's reasons. As I have said, there is no ground challenging the magistrate's factual findings, and the omission is not relied upon as an error. It is evident from the magistrate's findings, however, that she did not consider the appellant's friend's behaviour at any stage in the CCTV footage to be conciliatory, and it was clear the victim's partner wanted no contact or conversation with the appellant's friend. That should have been apparent to the appellant who was only a short distance behind his friend. Further, as her Honour found, appropriate intervention by the appellant would have involved him removing his friend from the scene. I do not consider that the magistrate's failure to mention the appellant's submission has any bearing on the appeal.

The defence sentencing submissions in the Magistrate's Court

1. It was put on behalf of the appellant at first instance that, in committing the offence, he had reacted to a perceived threat to his associate when the victim stepped forward. He accepted that his associate was 'very intoxicated and behaving very poorly'.[19] It was put on his behalf that he (the appellant) was not intoxicated 'to that extent'.[20] It was submitted that, while his response was not reasonable, it was not a case of gratuitous or senseless violence.[21] I have already outlined the magistrate's findings in respect of those matters.
2. It was submitted on the appellant's behalf that, while he accepted the consequences could have been 'enormously more significant than they were', the nature of the injuries suffered by the victim meant that the case was not in the most serious category, but could be regarded as being in the 'mid to upper range' for matters of this kind.[22] When those submissions were made on 2 January 2018, a victim impact statement had not been provided to the court. Such a statement was provided from the victim for the adjourned sentencing on 10 January 2018. It outlined the broader impact of the offence upon his life: see [35] below. Senior Counsel for the appellant made further submissions on 10 January 2018, but did not resile from the submission made previously in respect of the seriousness of the offence.
3. Both at the time of the offence and at the time of sentencing, the appellant was 21 years of age.
4. It was submitted on behalf of the appellant at first instance that:

(1) he was a person of prior good character, who had not engaged in this kind of antisocial behaviour before;

(2) the offending should be regarded as out of character and he was unlikely to reoffend again;

(4) he was remorseful and had demonstrated insight; and

1. The magistrate was provided with a large number of references from the appellant's family, friends and academic colleagues, all of whom spoke very favourably of the appellant's character. They also revealed that:

(1) the appellant excelled in school both academically and in sports, achieving leadership roles and culminating in a scholarship to Princeton University in the United States;

(2) the appellant had undertaken activities as a mentor with underprivileged children, both while he was at school and during a gap year;

(3) at the time of the sentencing he was still enrolled at Princeton University where he was studying commerce and was a member of the athletics team; and

(4) at Princeton University he was a board member of the Disability Awareness Club and other clubs, all of which were voluntary positions.

1. It was submitted on behalf of the appellant that he had 'suffered in the public domain' in that there had been significant publicity in the media about the case because of his sporting achievements and his scholarship at Princeton University.[23] It was also submitted that the conviction for the offence had put in jeopardy his ability to return to the United States and his scholarship.[24]
2. When the hearing resumed on 10 January 2018, Senior Counsel for the appellant noted that the victim, in his victim impact statement, had made a point about the absence of an apology from the appellant. Counsel said that the appellant had always intended to apologise, but had been advised that he should not have contact with the victim until the matter was dealt with.[25] He also said that the appellant had been willing to compensate the victim for any out of pocket expenses, and the prosecution had been advised of that in December 2017.
3. Senior Counsel also referred on 10 January 2018 to publicity in the press which referred to the assault as a 'coward's punch'. He sought to distinguish the present case from those where that description had been used in the past.[26]
4. Overall, it was submitted on behalf of the appellant at both hearings in the Magistrates Court that, given his age, his personal circumstances and the unlikelihood he would offend again, the matter could be dealt with by way of a fine.[27] It was submitted in the alternative that, if the magistrate did not consider a fine was appropriate, a suspended sentence of imprisonment would adequately reflect the seriousness of the offence.

The prosecutor's submission in the Magistrates Court

1. The prosecutor on both occasions in the Magistrates Court submitted that a term of imprisonment was the only appropriate disposition, having regard to the need for general deterrence of such offending.[28] The prosecutor did not make any submission in respect of the appropriateness of a suspended sentence.

1. The magistrate concluded that a term of imprisonment was the only appropriate penalty. Her Honour reduced the sentence she would otherwise have imposed by 20% for the appellant's early plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).[29] The term she determined to be appropriate after that reduction was 9 months' imprisonment. Apart from the reduction for the plea of guilty, that term took into account the appellant's age, his lack of a criminal record and his antecedents.[30]
2. The appellant was made eligible for parole.
3. In determining the appropriate sentence, her Honour took into account the following aggravating factors:

(2) The appellant punched the victim with considerable force in circumstances where the victim did not have the opportunity to defend himself.[32] Her Honour was of the view that 'coward's punch' was an apt description for the assault;[33]

(3) The appellant left the scene without rendering any assistance. He knew what he had done and showed a callous disregard for the welfare of his victim. This was said to demonstrate a lack of remorse;[34]

(4) The offence had had an impact on the victim beyond the immediate injuries. His injuries included a slight bleed on his brain that required ongoing monitoring. He was left with a scar on the back of his head where staples had been used to close the cut, and his hair had not grown over to completely cover the scar. He had generally suffered a lack of enjoyment of recreational activities. He had suffered from anxiety, being unable to go out for some time. The effects of the offence had also affected his studies. He had also suffered financial loss;[35] and

(5) The offence also had an impact on the victim's mother, which was to be expected. Her victim impact statement[36] spoke of the distress she suffered when she received 'the call that no parent wants to receive' that her son was in hospital with head trauma as a result of an assault. She had suffered 'the anxiety of all parents' in such a situation.[37]

1. Her Honour took into account the following mitigating factors:

(1) The appellant had pleaded guilty;[38]

(2) At 21 years of age, the appellant was a young man;[39]

(3) The appellant was a person of prior good character, evidenced by the fact he had no prior record and by the impressive references presented on his behalf;[40]

(4) The appellant had a fine academic record, being the holder of a current scholarship at Princeton University where he was studying commerce and taking part in a track and field programme;[41]

(5) The conviction alone may place in jeopardy his scholarship, and imprisonment (suspended or otherwise) would have a considerable impact on his future.[42]

1. In assessing the seriousness of the offence, her Honour had regard to the fact that the assault only consisted of one punch and was not a prolonged attack, but her Honour appears to have considered that it was of greater significance that it was an unprovoked forceful blow that rendered the victim unconscious.[43]
2. The magistrate also had regard to the appellant's submission that he acted impulsively in response to a perceived threat to his associate, although she found there was no actual threat and the use of violence was entirely unreasonable and unjustified.[44] The respondent has submitted that the fact the appellant acted impulsively ought not to be regarded as a mitigating factor. I agree, but in assessing the seriousness of the offence, the magistrate was entitled to take into account that the offending was not pre-meditated or pre-planned, which factors, had they existed, would have made the offending objectively more serious. The offending was an unreasonable and unjustified impulsive response, and the appellant was sentenced on that basis.
3. Before turning to the magistrate's sentencing remarks which shed light on her reasoning in concluding that imprisonment was the only appropriate sentence and that suspension of the sentence was not appropriate, it is relevant to note that at an early stage during the plea in mitigation on 2 January 2018, her Honour said:[45]

It's an unprovoked attack, Mr Percy, and he ends up on the ground unconscious. So, the reality is we're starting at imprisonment.

1. On 10 January 2018, the magistrate commenced her sentencing remarks by providing a brief outline of the history of the proceedings, identifying the relevant penalty and indicating the reduction she would make for the plea of guilty if a term of imprisonment were imposed. Her Honour then noted that the defence had urged upon the court that the appropriate penalty should be a substantial fine and a spent conviction order, and the prosecution had submitted that a term of imprisonment would be appropriate. She then made the first reference to the issue of whether a suspended sentence would be appropriate in the following passage:[46]

I have been told by defence that there are no identifiable treatment needs, and in my view, having been told that information, that would rule out of consideration any conditional suspended imprisonment order or partially suspended imprisonment order or community-based order for this offence, and give rise, in my view, to some question as to whether any term should be suspended when the purpose of a suspension is to promote rehabilitation.

At the outset, I indicated to defence and prosecution that, in my view, a term of imprisonment was the only appropriate penalty, and the issue to be addressed before me was really whether it should be an immediate or suspended term. I acknowledge, having said that, that the accused was a young man of 21 years, and he comes before the court with no record. Having said that, it's not unusual in these types of offences, however, for the persons to be involved being young and having little or no record.

1. Her Honour later identified the community concern in respect of such offending and the need for general and personal deterrence:[47]

It is true, as Mr Percy has said this morning, that this is generally being referred to as a one-punch attack or a coward's punch, and there has been a lot of talk in the community and in the press about this situation. It is my view that it does meet that description, and other than the consequences, which we've all seen to be more serious than this, fortunate for this complainant, the consequences were less serious.

It is my view that general and personal deterrence is called for, not what might have been or what the outcome might have been, but simply reflecting the actions of this accused on the night.

1. Her Honour returned to the issue of the community's values and expectations and the need for general and personal deterrence in her concluding remarks, reproduced at [44] below. In my opinion, it is clear that her Honour considered the need for general deterrence to be of paramount importance in arriving at the final disposition.
2. Apart from the need for general and personal deterrence, it is clear from her Honour's subsequent remarks that she considered the objective seriousness of the offending to be such that no sentence other than a term of imprisonment (before considering suspension) was appropriate. It is also clear that in determining the term to be imposed, her Honour took into account mitigating factors personal to the appellant. Each of those matters emerges from the following passages (emphasis added):[48]

At the end of the day, this was an unprovoked attack. It was an unreasonable response to what is a perceived threat on behalf of the accused. The force behind the punch was considerable. It was a choice made by the accused in a situation where he resorted to violence rather than taking his friend and walking away before the situation escalated to this point. The defence have referred to the case of Eric v Bull and some other authorities. In my view, this matter presently before the court is a more serious factual situation and does warrant the consideration of immediate term of imprisonment.

In fact, I form the view that a term of imprisonment is the appropriate penalty, and that term obviously needs to take into account the age of the accused, his plea of guilty, his lack of record, his antecedents and the fact (sic). In relation to this, I am of the view that a term of nine months' imprisonment would be appropriate, having applied the 20 per cent discount for the early plea and the personal factors reflected in the circumstances of the accused.

1. Her Honour then turned her mind again to the question of whether it would be appropriate to suspend the term of imprisonment she had arrived at. Her approach was in accordance with the two-stage approach which Kirby J (Gaudron and Gummow JJ agreeing) determined to be necessary in Dinsdale v The Queen.[49] Having decided that a term of 9 months' imprisonment was appropriate, her Honour said (emphasis added):

Having come to that view, I need to give consideration to the appropriateness of suspending that sentence. In relation to that, there has been no indication of any rehabilitation requirements or anything to be addressed by a suspended term for the accused, and in those circumstances, obviously I need to look at the circumstances of the events and the impact independently.

It is my view, having come to the view that nine months is appropriate, that it should be an immediate term and not suspended. There is, in my view, a community value and expectation in relation to these things, and there certainly has been considerable media and public comment. That is not for me to make any comment about and not a matter for me to consider directly, but there does need to be general and personal deterrence so that young, intoxicated men cannot resolve issues at the end of a night with a violent, unprovoked attack on an unsuspecting person.

While it is true to say that this was not a prolonged attack - it was a single punch - the complainant received a forceful blow to the head. He was rendered unconscious. He had no way of defending himself because he had no reason to suspect it would happen.

The unprovoked nature of the attack and the total disregard by the accused for the complainant by walking away, glancing over his shoulder, elevates this offence to one warranting imprisonment, and it is not mitigated by age, lack of record, future prospects and antecedents, and that is why I intend to make it an immediate term and not suspend it.

1. In my opinion, properly understood in the context of the whole of her Honour's reasons, the last paragraph:

(1) identified two aspects of the offending that, in her Honour's opinion, elevated the offence to a level of seriousness that warranted immediate imprisonment, namely the unprovoked nature of the attack and the appellant's total disregard for the welfare of the victim; and

(2) explained that, in those circumstances, the mitigating factors personal to the appellant did not justify suspending the term of imprisonment.

1. The context provided by the balance of her Honour's reasons included her assessment of the community's concerns for such offending and the need to deter young, intoxicated men from resorting to unprovoked violence upon unsuspecting victims to resolve issues in circumstances such as those of this case. It also included an appreciation that it is not unusual for offences of this type to be committed by persons who are young and have little or no record.[50] I note also that, in the context of dealing with the application for a spent conviction order, her Honour said that she had no way of knowing that the appellant would not respond similarly by using violence in a similar situation in the future.[51] That reasoning would appear to have informed her Honour's determination that personal deterrence was a relevant consideration.

1. It is convenient to deal with Ground 3 first. That ground alleges a specific error of law in her Honour's reasoning in concluding that the sentence of imprisonment she otherwise considered to be appropriate should not be suspended. As I noted earlier, the appellant's argument in respect of Ground 1 is that the sentence was manifestly excessive both as to the length of the term of imprisonment imposed and the type of sentence imposed, in that any term of imprisonment should have been suspended. The length of the term of imprisonment is not relevant to a consideration of Ground 3. However, if the ground is made out, subject to the potential application of the proviso, the sentence would be set aside and this court would be required to exercise the sentencing discretion afresh.

1. The power to impose suspended imprisonment is found in s 76 of the Sentencing Act, which provides:

(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 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.

In this Act a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of -

(a) the whole of the term or terms; or

(b) part of the term or terms.

1. The effect of s 4(4)(b) is to empower the court to require an offender to serve part of a sentence of imprisonment and suspend the balance.
2. Section 81 of the Sentencing Act provides for the imposition of conditional suspended imprisonment by a prescribed court, which at the time of sentencing in this matter included the Magistrates Court.[52] It is in the same terms as s 76(1), except that the order which may be made is in respect of 'the whole of the term or terms' and the suspension is to be subject to conditions specified in ss 83 and 84. Those conditions are intended to provide supervision of the offender and address treatment needs in respect of factors that have contributed to the offending. The appellant does not submit that there was any basis for imposing conditional suspended imprisonment. His counsel maintained the position on appeal that the appellant did not have treatment needs.
3. The operation of s 76 (as qualified by s 4(4)(b)) and s 81 must be considered in the context of s 39(2) and (3) of the Sentencing Act. Section 39(2) lists the sentencing options available to the court in a hierarchical structure, commencing with the least serious form of sentence and progressing to the most serious in s 39(2)(h), which is the imposition of a term of imprisonment 'under Part 13'. That is the effect of subsection (3), which states:

A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.

1. The effect of the provisions of pt 13 of the Sentencing Act, in combination with s 6 of the Sentence Administration Act 2003 (WA), is that a term of imprisonment is to be served immediately. Therefore, s 39(2)(h) is concerned with a term of imprisonment to be served immediately.
2. The effect of s 39(3) is that the court cannot impose a term of imprisonment to be served immediately unless it is satisfied that neither suspended imprisonment (whether wholly or partially suspended) nor conditional suspended imprisonment is appropriate.[53]
3. However, neither suspended imprisonment nor conditional suspended imprisonment is 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: s 76(2) and s 81(2). The discretion to suspend in each case is predicated on the court sentencing an offender to a term of imprisonment: s 76(1) and s 81(1). Therefore, before considering whether any of the options involving suspension of imprisonment is appropriate, the court must be satisfied that imprisonment is appropriate, having regard to all the circumstances.
4. In determining whether imprisonment is appropriate, the court must have regard to div 1 of pt 2 of the Sentencing Act, which sets out the general sentencing principles to which a judicial officer must have regard in sentencing an offender. The overarching principle is that a sentence must be commensurate with the seriousness of the offence: s 6(1). 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), any aggravating factors and any mitigating factors: s 6(2). As for imposing a sentence of imprisonment, s 6(4) provides:

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. The principles which govern the application of s 76 were set out in Dinsdale v The Queen[54] by Kirby J (with whom Gaudron and Gummow JJ agreed). His Honour first explained that there are two distinct steps involved:[55]

The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise.

1. Kirby J then addressed what factors the court is required to take into account in determining whether to suspend a term of imprisonment it has decided to impose. There had been a division of opinion in the decisions of the Court of Criminal Appeal in Western Australia between judges who considered that the primary purpose of a suspended sentence was as an aid to rehabilitation, allowing that other factors might also be relevant, and judges who considered that the exercise of discretion should not be confined in that way, but should encompass all circumstances that were relevant in the sentencing process.[56] Kirby J expressed the following views, which have been applied since (citations omitted):[57]

In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. ...

Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.

1. Kirby J went on to say that adopting this approach permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence, which in a particular case may outweigh 'the personal considerations of rehabilitation and mercy' and 'may require that the prison sentence be immediately served, despite mitigating personal considerations.'[58] His Honour explained:[59]

This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion" which, subject to the statute, the primary judge has in suspending a sentence of imprisonment.

1. The effect of the appellant's argument in respect of Ground 3 is that the magistrate erred by regarding the appellant's lack of identifiable treatment needs as a determining factor in not suspending the sentence of imprisonment that her Honour otherwise considered to be appropriate.
2. The argument relies primarily on her Honour's use of the definite article before the word 'purpose' when she said in the first paragraph quoted at [40] above that the appellant's lack of identifiable treatment needs (which his counsel had submitted was the case) gave rise, in her view, to 'some question as to whether any term should be suspended when the purpose of a suspension is to promote rehabilitation'.
3. However, the appellant submits that, even apart from stating that the purpose of suspension was to promote rehabilitation, it can be concluded that her Honour regarded the promotion of rehabilitation (and the associated need to identify treatment needs) as a determining factor, because she appears to have focussed most of her attention in that paragraph and the concluding parts of her sentencing remarks on the question of the appellant's rehabilitation. The appellant submits that her Honour adopted too narrow a focus in doing so.[60] Indeed, the appellant's submission at the hearing was that her Honour's remark when considering suspension, in the first paragraph quoted at [44] above, that there was 'no indication of any rehabilitation requirements' effectively made the need for rehabilitation requirements a 'prerequisite' to suspension.
4. I do not accept the latter submission. If her Honour had made it a prerequisite, then a failure to meet that prerequisite would have brought the consideration of suspension of the sentence to an end. That is not what occurred. Her Honour went on to 'look at the circumstances of the events and the impact'. Senior Counsel for the appellant on the appeal accepted that her Honour must be taken to be referring in that phrase to the circumstances of the offence and the appellant's personal circumstances and to be saying, effectively, that she was taking a second look at all relevant factors.[61]
5. Her Honour had made it clear in the second paragraph quoted at [40] above that, from the outset, her view was that a term of imprisonment was the only appropriate penalty, and the issue was whether it should be an immediate or suspended term. A significant part of her Honour's reasons reproduced above explained why she had determined that a term of imprisonment was the only appropriate sentence. The balance of those reasons explained why her Honour was not prepared to exercise her discretion to suspend the term of imprisonment she had determined to be appropriate.
6. On a fair reading of her Honour's reasons, reproduced at [41], [43] and [44] above, her Honour took into account all relevant factors in determining that a term of imprisonment was the only appropriate sentence and in fixing the length of that term, including the seriousness of the offence, the need for general and personal deterrence (which reflects the need to protect the community) and matters personal to the appellant. The latter is particularly evident from her Honour's statement that the term she imposed 'obviously needs to take into account the age of the accused, his plea of guilty, his lack of record [and] his antecedents'.[62]
7. Having determined that a term of 9 months' imprisonment was justified, the question that remained was whether the term should be suspended. That is the issue her Honour identified as requiring consideration in the first paragraph quoted at [44] above. It is sufficiently clear, in my opinion, that everything her Honour said from that point in her reasons was directed to whether the term should be suspended.
8. A relevant consideration was whether the appellant had treatment needs that should be addressed to promote his rehabilitation. Her Honour dealt with that again, having referred to it at the outset of her sentencing remarks. It was appropriate for her to refer to it again as part of considering all relevant factors a second time to determine if the sentence of imprisonment should be suspended.
9. Having determined that there were no rehabilitation needs to be addressed, her Honour said she must consider the 'circumstances of the event and its impact independently'. In my opinion, the use of the adverb 'independently' indicates that her Honour intended to have regard to factors independent of rehabilitation needs in deciding whether to suspend the sentence. 'Circumstances of the event', as Senior Counsel for the appellant acknowledged, may reasonably be taken to include the circumstances of the offence and the appellant's personal circumstances as they bore upon the offending.
10. It is obvious from the context that while some of the matters referred to by her Honour might be regarded as weighing in favour of suspension, most of the matters weighed against suspending the term of imprisonment. Weighing against suspension was the community expectation that offences of this kind would be met with sentences that would deter young, intoxicated men from committing violent, unprovoked attacks on unsuspecting persons.[63] That was a relevant consideration.[64] The need for general deterrence loomed large as a sentencing factor.
11. Her Honour then referred to the circumstances of the offence and its impact. In terms of the seriousness of the offence, her Honour had regard to the fact it was a single punch, not a prolonged attack. However, weighing against suspension were the fact that it was a forceful blow that rendered the victim unconscious and the fact that the victim had no way of defending himself because he had no reason to suspect the assault would happen.[65]
12. Finally, her Honour determined that the unprovoked nature of the attack and the appellant's total disregard for the victim's welfare immediately after the assault, aware that he had rendered the victim unconscious, were factors that elevated the offence to one that warranted immediate imprisonment.[66] In other words, those factors made it inappropriate to suspend the sentence, notwithstanding the mitigating factors personal to the appellant, being his 'age, lack of record, future prospects and antecedents'. It is clear, in my opinion, that her Honour had regard to those factors in considering whether to suspend the sentence, but concluded that the sentence was 'not mitigated' by them. In context, that must mean that those factors personal to the appellant were not sufficient to make a suspended sentence appropriate. That was the issue still being addressed.
13. It was not suggested by the appellant that, absent mitigating factors, the objective circumstances of the offence would not have justified an immediate term of imprisonment. As will appear in the reasons dealing with Grounds 1 and 2, there have been cases where similar behaviour has been found to justify an immediate term of imprisonment. Indeed, some of the appellant's submissions were directed to distinguishing such cases on the basis that the appellant's personal circumstances were more favourable.
14. Pursuant to s 6(4) of the Sentencing Act, in order to have arrived at the decision that a term of imprisonment should be imposed (which precedes any consideration of suspension), the magistrate had to be satisfied that the seriousness of the offence was such that only imprisonment could be justified, or that the protection of the community required it. Of course it could be both, and her Honour's reasons suggest she was satisfied in both respects. In such circumstances, the appropriateness of suspension is likely to depend on the existence of mitigating factors that justify suspension.
15. It is important to remember that Kirby J's analysis in Dinsdale v The Queen did not suggest that a consideration of all relevant matters again at the point of determining whether to suspend imprisonment would be expected to weigh in favour of suspension. On the contrary, his Honour acknowledged that the attribution of 'double weight' to all of the factors relevant to the offence and the offender whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment, could result in the court imposing an immediate term.[67] That may be because the objective features of the offence may outweigh 'the personal considerations of rehabilitation and mercy' and may require that the term be served immediately, despite mitigating factors personal to the offender.[68]
16. It is necessary to return to the impugned remarks that underpin this ground of appeal. The appellant does not submit that the magistrate was wrong to rule out of consideration, because of the appellant's lack of treatment needs, a conditional suspended imprisonment order or a community-based order. Both forms of order are intended to address an offender's need for supervision and treatment of factors that have contributed to the offending, neither of which was considered necessary in this case. Further, given the assessment that her Honour made of the seriousness of the offence and the need for general deterrence, a community-based order would not have been appropriate. Nor does the appellant challenge the fact that her Honour ruled out a partially suspended sentence.[69] The appellant has never submitted that such a sentence would be appropriate.
17. As I said earlier, the appellant submits her Honour erred in stating that 'the purpose of a suspension is to promote rehabilitation', which the appellant contends was a declaration that if there was no identified need for rehabilitation, that would be determinative against ordering a suspended sentence. If the statement stood in isolation, it could well be regarded as contrary to the principle in Dinsdale v The Queen that a court must not 'limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender'. That is because of the use of the definite article before 'purpose' in her Honour's remark. It would be unexceptionable to say that rehabilitation is a purpose of suspending imprisonment.
18. However, her Honour's remark needs to be considered in the context of the whole of her reasons.
19. In the first place, the immediate context was that, in her Honour's view, the absence of treatment needs gave rise 'to some question as to whether any term should be suspended when the purpose of a suspension is to promote rehabilitation'. The raising of 'some question' is not an indication that her Honour regarded the absence of a need for treatment or rehabilitation as determinative of the question whether any term of imprisonment should be suspended.
20. Secondly, her Honour's remark towards the end of her reasons, that there had been 'no indication of any rehabilitation requirements or anything to be addressed by a suspended term' for the appellant, does not reinforce the appellant's argument. Those were proper matters to be taken into account and, in my opinion, her Honour was doing no more than ruling them out as bases for suspending the term of imprisonment she had determined was justified, before proceeding to consider other factors.
21. Finally, as appears from [63] and [66] to [71] above, her Honour did not treat the absence of rehabilitation requirements as determinative. Rather, she proceeded to consider whether the sentence should be suspended by reference to all factors that were relevant to the exercise of her sentencing discretion generally. In the absence of treatment needs, her Honour focussed on weighing the objective seriousness of the offence (including the appellant's total disregard of the victim's welfare) and the need for personal and general deterrence against the appellant's personal mitigating factors.
22. On a fair reading of her Honour's reasons as a whole, I am not persuaded that she regarded the appellant's lack of treatment needs as a determining factor (or indeed as the main focus) in declining to suspend the sentence.
23. Although I would grant leave in respect of Ground 3, the ground has not been established.

1. It is convenient to deal with Grounds 1 and 2 together, as they both rely on implied error and on the same particulars to found the claim that a different sentence ought to have been imposed.[70]
2. The appellant's argument was that the sentence was unreasonable and plainly unjust in respect of both the length of the term imposed and the fact that the magistrate failed to suspend the sentence, having regard to the standards of sentences customarily imposed for such offences, the objective seriousness of the offence in this case compared with the nature of the offending in other cases of assault occasioning bodily harm and, most significantly, the appellant's personal circumstances.
3. In respect of Ground 2, the appellant relies on the legislative requirement that the court must not impose an immediate term of imprisonment unless it is satisfied that it is not appropriate to use a lesser option, including a suspended sentence.[71] The legislative scheme reflects the sentencing principle that imprisonment is a punishment of last resort. The appellant submits that it was not reasonable, in all the circumstances, for the magistrate to conclude that a suspended term of imprisonment was not appropriate.
4. The appellant placed particular weight on his young age and good antecedents. It was submitted that, rather than contributing to a young offender's rehabilitation, a term of immediate imprisonment may have a deleterious effect on such an offender, particularly where the sentence is short and unlikely to provide opportunity for engagement in rehabilitation programmes.
5. Before dealing with the merits of these grounds, it is necessary to refer to a development that occurred after the hearing of the appeal.

Additional information received concerning the appellant's antecedents

1. At first instance and during the hearing of the appeal, it was submitted on behalf of the appellant that he was a young man with impeccable antecedents, who had never previously been convicted of any offences. It is accepted on behalf of the appellant that the submissions gave the impression he had never been in any sort of trouble.
2. The appeal was heard on 1 May 2018. By letter dated 2 June 2018, the appellant's lawyers informed the Court that they had received information on 31 May 2018 which showed that the appellant had been convicted of offences in the Princeton Municipal Court in New Jersey. The information was contained in records from Princeton University Department of Public Safety, the Princeton Municipal Court and the Princeton Police Department. The appellant subsequently provided instructions to his lawyers confirming he had twice appeared in court in the United States. The records were forwarded with the letter of 2 June 2018.
3. I am of the opinion that I can have regard to the material pursuant to sections 14(5), 40(1)(a) and 40(1)(e) of the Criminal Appeals Act.[72] It was obviously brought to the Court's attention by the appellant's lawyers so that the Court could have regard to it and not be misled. It was accompanied by explanations given to his lawyers by the appellant.
4. The two incidents that resulted in court appearances occurred on 1 May 2016 and 10 March 2017.
5. The police investigation report for the incident of 1 May 2016 discloses that police attended an incident in the afternoon after a fight was reported. When the police arrived, they located the appellant with other persons. The appellant was in a dishevelled state and had some abrasions. He was described as being intoxicated and uncooperative. He claimed to have been assaulted, but did not wish to make a complaint. When asked for his particulars, he gave a false name and date of birth and claimed he was not from Princeton University, but was visiting from Australia. After police received information about the appellant's true identity, he was located and he admitted he had lied, saying he did not want to get into trouble because he had consumed alcohol. He was apologetic. He was charged with an offence of 'Hindering Apprehension'. He was dealt with in the Princeton Municipal Court on 9 May 2016. The court record suggests there was another charge of interfering with private property, but there is no further information about that. In any event, the appellant pleaded guilty, was fined $450 and was ordered to pay costs.
6. The police investigation report for the incident of Friday, 10 March 2017 discloses that sometime after 1.00 am the appellant was walking along a street when he threw a drink can onto the road. The can struck a police vehicle that was parked nearby. When the appellant was questioned by police he appeared to be 'severely intoxicated', his speech was very slurred and his breath smelt of alcohol. He admitted throwing the can into the street, but in effect said he had not intended to hit the police vehicle. He gave a false name and address. When asked for more information, he became evasive. Police ascertained the appellant's true identity from his friends. It appears he was charged with an offence of Disorderly Conduct, although the court record again shows an offence of interfering with private property. In any event, he was fined $100 and ordered to pay costs.
7. I note that the documents forwarded by the appellant's lawyers include a report from a patrolman with the Princeton University Department of Public Safety, who states that in the early hours of the morning of Saturday, 11 March 2017, the day after the incident described in the preceding paragraph, he attended a location at the university where he met with the appellant and another person. The appellant was intoxicated, vomiting and unable to walk. He was given medical treatment.
8. The appellant has informed his lawyers that, in each instance when he was charged, his attorney in the United States negotiated with the prosecution and the charge in each case was either amended or downgraded. In my opinion, the information from the investigation reports is of greater importance in revealing the conduct for which he was being dealt with than the precise nature of the charges of which he was convicted.
9. The appellant has informed his lawyers in these proceedings that his attorney in the United States advised him that the charges were trivial and that he would not need to disclose them to anyone in the future. The basis for such advice is not apparent. Accepting that the advice was given and that it may be correct that the appellant was not required to disclose the convictions in some contexts (as would be the case, for instance, if a spent conviction order were made in this jurisdiction), it is concerning that the appellant would regard it appropriate to conceal such information from his lawyers and allow the Magistrates Court and this Court to be led to believe that he had an unblemished record. Of course, the information has been brought to the Court's attention quite properly by the appellant's lawyers, in accordance with their obligation, but the information is said to have been received by them from a journalist, not from the appellant.
10. I have gone into some detail about this issue because I consider it to be important, having regard to the significance placed on the appellant's character in his submissions to this Court. More particularly, when discussing comparable cases, the submission made on behalf of the appellant in some instances, whether seeking to distinguish another case or draw comparison, relied on the appellant having no criminal record at all. That reliance cannot be maintained.
11. A criminal record does not aggravate the appellant's offending. Further, the offences of which he was convicted in the United States are not of the same character as the offence for which he was sentenced in this case. They can properly be regarded as being of a minor nature, but they are not trivial, particularly in the context of a case in which significant reliance has been placed on a submission that the appellant's character has been exemplary apart from the offending in this case. That is not an apt description of someone who has on more than one occasion lied to the police about his identity. The fact that he was intoxicated, in one instance 'severely', is no excuse and not to his credit.
12. While the many positive achievements, good deeds and laudable characteristics spoken of in the numerous character references continue to carry mitigating weight, the weight to be given to the assessments of character in those references is tempered by the absence of any mention of the incidents in respect of which he was charged in the United States. Assuming that is because the referee was not aware of them (although that would be surprising in respect of those who are particularly close to the appellant), the reference in each case cannot be accepted as one that is fully informed.

1. The starting point in considering Grounds 1 and 2 is the legislative framework within which the learned magistrate was required to impose a sentence. That framework is set out at [48] [56] above. As I noted earlier, the overarching principle is that a sentence must be commensurate with the seriousness of the offence. That requires consideration of the maximum penalty for the offence, the circumstances of the offence and any aggravating and mitigating factors. Findings in respect of the circumstances of the offence and any aggravating and mitigating factors will obviously affect where the case falls on the scale of seriousness when assessing the claim of manifest excess.

1. The maximum penalty for the offence of assault occasioning bodily harm is 5 years' imprisonment.[73] The summary conviction penalty is 2 years' imprisonment, but that is a jurisdictional limit, not a maximum penalty.[74]

1. Earlier in these reasons I set out the factual basis on which the magistrate sentenced the appellant, including the assessment she made of the seriousness of the offence, having regard to the appellant's conduct and the impact on the victim. In my opinion, her Honour's assessment was well-founded.
2. This was undoubtedly a serious offence. It was an unprovoked use of considerable force on an unsuspecting victim, who was rendered unconscious either by the punch or when his head struck the ground as a result of the assault. Apart from a gash to the back of his head, the victim had suffered some bleeding on his brain, which had required monitoring.
3. One of the particulars on which Grounds 1 and 2 rely, which relates to the circumstances of the offence, is that the victim did not suffer permanent physical disability or injury. With respect, such a particular is unhelpful in the context of an appeal from a sentence for an assault occasioning bodily harm. Had the victim suffered a permanent injury, the appropriate charge would have been grievous bodily harm, and the court would be considering sentencing for that offence.
4. While the bleeding on the victim's brain did not amount to grievous bodily harm, nevertheless it was a source of anxiety for the victim and his mother, as appears from their victim impact statements. The extent of such an injury in any particular case, when a victim has had an unprotected fall onto a hard surface, may be a matter of chance. A more serious bleed can have catastrophic consequences.
5. The magistrate noted that general and personal deterrence was called for, not because of what the outcome might have been, but simply to reflect the appellant's actions on the night.[75] It is correct, of course, that her Honour was required to sentence for the offence the appellant had committed. However, in my opinion, the potential consequences of the appellant's actions were relevant to an assessment of the seriousness of his conduct and the need for general deterrence.[76] As the respondent submitted, correctly in my view, the risks posed to victims of assaults of this kind are wellknown, and it is therefore important that sentencing courts send a strong denunciatory message to persons who are minded to behave in the same way as the appellant did.
6. It was an aggravating factor in this case, as found by the magistrate, that the appellant showed callous disregard for the welfare of the victim as he left the scene. As her Honour said, the appellant 'knew at that stage what he had done and the possible consequences, but he chose to continue to walk away from the situation and he did not render any assistance.'[77] Her Honour considered it showed a lack of remorse at that time.[78] In my opinion, the findings were open on the facts. The callous disregard and lack of remorse at the time of offending had to be weighed against the evidence presented to the court of the appellant's prior good character.

1. The mitigating factors to be found in the appellant's personal circumstances are outlined at [27] and [36] above. The mitigating factors that were pressed on the magistrate by the appellant's counsel, as outlined in [26] above, concerning the appellant's remorse, the salutary effect upon him of the offence and the unlikelihood that he would offend again, were not the subject of specific findings by her Honour. In my opinion, while the first two matters were mentioned in some of the references, the mitigation to be accorded those factors was tempered by the appellant's lack of remorse and callous behaviour immediately after the offence.
2. Although the convictions in the United States and the surrounding circumstances tend to take the gloss off the evidence of the appellant's prior good character, it remains the case that generally he may be regarded as a young man with excellent antecedents. Of particular note was his work as a volunteer with underprivileged children and on the board of the Princeton Disability Awareness Club.
3. While the magistrate accepted that the appellant had good future prospects, she made no finding in respect of the appellant's submission that he was unlikely to reoffend. As noted earlier in these reasons,[79] her Honour said that she had no way of knowing that the appellant would not respond similarly by using violence in a similar situation in the future. In my opinion, that position was justified, having regard to the appellant's behaviour immediately after the offence.
4. The appellant referred to the 'extra-curial punishment' the appellant has suffered in the form of significant publicity in relation to this matter, and submitted it should be taken into account in mitigation of the sentence. It was not a matter to which the magistrate gave mitigatory weight. The question of whether unusual media scrutiny of an offender in respect of the offence for which he is being sentenced should be taken into account as a mitigating factor has not been finally resolved.[80] The matter was discussed by Martin CJ in Scolaro v Shephard [2010] WASC 271. His Honour noted that in New South Wales there is authority for the proposition that in exceptional cases, where the public humiliation was of such proportion that it had some physical or psychological effect on the offender, it could be considered as additional punishment, and therefore taken into account in mitigation of penalty.[81] There is no suggestion that the publicity in this case has had such an effect on the appellant. Further, I agree with the following observations made by the Chief Justice in Scolaro:[82]

[O]ffenders who violate established community standards of behaviour must expect public humiliation, and the risk of significant media attention. The media have an important role to play in providing information to the public with respect to the decisions of our courts, and, through that process, in the deterrent effect of punishment.

1. Although in that case the level of media attention had been exceptional and had affected the appellant psychologically, his Honour was of the view that it would be wrong in principle to give significant weight to the media attention given to that case, as a matter of mitigation. I am of the same view in the present case.

1. I turn next to a consideration of the standards of sentencing in respect of assaults occasioning bodily harm and a comparison of the sentence imposed in this case with sentences in broadly comparable cases.
2. The Court of Appeal has considered the appropriate range of sentences for the offence of assault occasioning bodily harm on a number of occasions. The cases demonstrate that it is difficult to discern any 'tariff' or usual sentencing range for that offence because of the great variation in circumstances in such cases.[83] Nevertheless, in Holden v The State of Western Australia,[84] Wheeler JA concluded that 'in cases which have involved pleas of guilty, a posttransitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment', and that the range had been demonstrated to be appropriate even in relation to sentences imposed by magistrates.
3. The appellant referred to seven cases by way of comparison: Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826; Griffiths v Procopis [2012] WASC 40; Clarke v The State of Western Australia [No 2] [2013] WASCA 197; Eric v Bull [2014] WASC 342; Cake v McDonald [2017] WASC 87; Kennedy v The State of Western Australia [2017] WASC 156; and Spirovski v The State of Western Australia [2017] WASCA 230.
4. The respondent referred to Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 and Ali v The State of Western Australia [2013] WASCA 55.
5. I have considered all of those cases. It is not necessary to summarise them in any detail, but it will be necessary to examine some aspects of those cases in the context of the submissions made on behalf of the appellant.
6. None of the cases referred to is completely analogous to the present case. A comparative analysis confirms the conclusion frequently expressed in the authorities that, while courts should endeavour to achieve broad consistency in sentencing for similar offending in order to maintain public confidence in the administration of criminal justice, the variety of circumstances in which offences are committed and differences in personal circumstances of offenders mean that each case must be assessed on its own merits. Previous decisions may provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[85]
7. A number of factors have been identified in previous decisions that are relevant to assessing the relative seriousness of an offence of assault occasioning bodily harm. They include:

(1) Whether the assault was premeditated. Usually a premeditated assault will be regarded as more serious than an impulsive act of violence.

(2) The nature and extent of the violence. A persistent attack involving extensive violence will ordinarily be regarded as more serious than a brief assault with minimal violence.

(3) Whether a weapon was used. Generally, the use of weapons will aggravate an offence.

(4) Whether the assault was committed in company with other offenders. If so, it will generally be regarded as more serious.

(5) The nature and extent of the injury or injuries inflicted.

(7) The vulnerability of the victim both to the attack and to suffering serious injury.

1. However, when comparing cases, the assessment of the relative seriousness of each case will usually require a more nuanced approach than simply looking at the presence or absence of particular aggravating factors. For instance, an impulsive single blow using considerable force that is unprovoked and unexpected, placing the victim at risk of very serious injury, will not necessarily be less serious to any significant extent, or at all, than a persistent attack involving some premeditation in the context of a fight or where there has been some provocation. The assessment of seriousness will depend on the context of the particular case under consideration. The absence of some aggravating factors that existed in previous cases does not mitigate the seriousness of what the appellant actually did.[86]
2. A number of the cases referred to by the appellant are examples of where the court has decided that a suspended sentence could adequately reflect the seriousness of the offence and serve the need for general deterrence, while also making allowance for the offender's favourable personal circumstances. In Dinsdale v The Queen, Kirby J acknowledged the scepticism some people may have about the capacity of a suspended sentence to punish and act as a general deterrent,[87] but it has long been accepted that, despite the suspension, the imposition of a term of imprisonment as a component of a suspended sentence can serve those purposes. However, that is not to say that in an appropriate case the need for punishment and general deterrence may not be the determinative factor that renders a suspended sentence inappropriate. Some of the cases referred to by the appellant are illustrations of an immediate term of imprisonment being upheld, notwithstanding the offender's prior good character.
3. The cases referred to by both parties where a term of imprisonment imposed by a magistrate was set aside and a suspended sentence was substituted were:

(1) Clarke v The State of Western Australia [No 2] (2013) 9 months' imprisonment substituted with 8 months' imprisonment, suspended for 9 months. The offender was 21 years old, had no relevant criminal history and had good antecedents;

(2) Ali v The State of Western Australia (2013) - 12 months' imprisonment after conviction after trial in the District Court, substituted with a sentence of 2 months' imprisonment suspended for 12 months. The offender was 30 years old, was married and had a 2-year-old child. He had a record for traffic offences. He committed the offence while working as a taxi driver, after the victim was unable to pay a fare, and, as a result, he had lost his licence to drive a taxi. The offence was considered to be out of character;

(3) Eric v Bull (2014) - 7 months' imprisonment substituted with 8 months' imprisonment, conditionally suspended for 12 months. The offender was 31 years old, employed, had family support and had good antecedents. He had a criminal record for minor driving offences, disorderly conduct and hindering police;

(4) Cake v McDonald (2017) - 8 months' imprisonment substituted with 8 months' imprisonment, suspended for 12 months. The offender was 38 years old with favourable antecedents;

(5) Kennedy v The State of Western Australia (2017) - a total sentence of 12 months' imprisonment (6 months each cumulative on two counts of the offence of endangering the life, health or safety of a person: s 304(1)(b) of the Criminal Code) substituted with 6 months' imprisonment on each count conditionally suspended for 12 months. The offender was 22 years old at the time of the offence. He had no criminal record, had a supportive family, worked for a charity and in the music industry and played music at his church. He had served 3 months of the sentence imposed at first instance before being released on bail pending the appeal. That was taken into account and was said to have been a salutary experience for the offender.[88]

1. In each of those cases, except Ali, the offender pleaded guilty.
2. The appellant submitted that the present case has similarities with Clarke. That case involved a single punch to the victim's head that caused him to fall and strike his head on the ground, rendering him unconscious. The offender also left the scene without rendering assistance to the victim. However, in that case the offender and victim had been involved in a verbal altercation and had been 'up for a fight'. That is to be contrasted with the unprovoked and unexpected assault by the appellant in the present case. On the other hand, in Clarke the offender was subsequently seen on CCTV footage appearing to re-enact the fight in a triumphant manner. In that case, alcohol was considered to be a contributing factor to the offender's conduct and he had subsequently recognised that to be the case.
3. The appellant submitted that the circumstances of his offending also had similarities, in terms of the relevant factors going to seriousness of the offending, with the case of Cake. In that case, the offender had assaulted a female victim, pulling her onto the ground out of a taxi and then punching her once to the nose, fracturing her nose, while she was on the ground. The incident occurred over a dispute about the taxi. However, although the victim required medical attention, she was not rendered unconscious and was not hospitalised, and there was no injury such as the bleeding on the victim's brain in the present case that caused ongoing concern. The appellant submitted that his personal circumstances were more favourable than the offender's in Cake, because of the appellant's youth and his community work. However, the offender in Cake had no criminal record, was otherwise of good character and had not offended in the 14 months between when the offence occurred and when he came to be sentenced.
4. The appellant also submitted that the facts of Eric were comparable in that it involved one punch in circumstances in which the offender had 'snapped' and acted impulsively. He had assaulted a 17yearold staff member at a hardware store, causing him a broken nose, broken teeth and cuts. However, in that case the victim was not rendered unconscious or hospitalised. While the victim could be regarded as vulnerable, as he was much smaller than the offender and was not yet an adult, the circumstances did not involve an unexpected blow upon an unprotected victim. The appellant submitted that there were more significant mitigating personal factors in his case, including his youth and the lack of a criminal record. The latter has now been shown to have been wrong.
5. The appellant submitted that the facts of the present case were less serious than in Kennedy, yet the offender in that case was given a suspended sentence on appeal. However, while the offender in that case became involved in a persistent attack on the victim by a number of assailants, including chasing the victim from one location to another, he was sentenced on the basis that he was not the initiator of the assaults and had not caused any of the injuries suffered by the victim; Hall J thought that may indicate the degree of force used by the offender.[89] The fact that Kennedy was in company was considered probably to be the most significant aggravating factor. In my view, the appellant's submission cannot be accepted that his conduct was less serious than the conduct of the offender in Kennedy. It is necessary to consider the specific acts of each offender. In the present case the appellant was the only person who used violence, it was a forceful blow and it rendered the victim unconscious. The injuries included bleeding on the brain, which required monitoring.
6. It must also be noted that the offender in Kennedy had served 3 months of the sentence that had been imposed on him by the magistrate, and that was taken into account.
7. The cases referred to by the parties in which imprisonment was upheld or reinstated were:

(1) Wiltshire v Mafi (2010) - 15 months' imprisonment at first instance was held to have been appropriate by the Court of Appeal. It set aside the sentence of 12 months' imprisonment, suspended for 9 months imposed by the judge in the first instance appeal. Because of developments since the offender had first been sentenced, including the fact he had served some of the prison sentence and had continued to reform, the offender was sentenced to 12 months' immediate imprisonment with eligibility for parole. He was 20 years old at the time of the offending and had a previous conviction for assault occasioning bodily harm, for which he had been fined. However, he had a large network of friends and family support and had implemented positive change since committing the offence. He had pleaded guilty to the offence;

(2) Griffiths v Procopis (2012) - 14 months' imprisonment was upheld. The offender had pleaded guilty to the offence. He was 19 years old at the time of the offence and had positive antecedents;

(3) Spirovski v The State of Western Australia (2017) - 18 months' imprisonment upheld. He was convicted after trial. Although he had been charged with unlawfully doing grievous bodily harm and he was acquitted of that offence, he had not pleaded guilty to the offence of assault occasioning bodily harm. He was 25 years old at the time of the offence. He had a record for traffic offences, but was treated as a person of prior good character, having a strong work ethic, a positive relationship with his partner, and good support in the community. He had committed the offence while working as a security officer;

(4) Hooper v The Queen (2003) - 16 months' imprisonment (in posttransitional terms). He was 40 years old with favourable antecedents. Although he was sentenced after trial, he had previously stood trial on a charge of murder and had been acquitted. (The victim had died as a result of a head injury he suffered when he fell to the ground and was rendered unconscious by the single punch inflicted by the offender.) The offender had subsequently stood trial on a charge of unlawfully doing grievous bodily harm, of which he was also acquitted. He had offered to plead guilty to the offence of assault occasioning bodily harm, but the offer had not been accepted by the prosecution.

1. The appellant sought to distinguish each of those cases on the basis that the offending in each case was more serious than in the present case, and that there were mitigating factors present in his case that were absent in those cases.
2. I agree that the offending in Wiltshire v Mafi and Griffiths v Procopis was more serious than in this case. The assault in Wiltshire was prolonged and brutal and the victim suffered serious trauma as a result of the assault, including a lacerated spleen and kidney, requiring catheterisation. The assault in Griffiths was committed in company with another person who also assaulted the victim. It was a sustained attack that included a number of blows to the back of the victim's head, kneeing of the victim to his head, and a kick to his head by Griffiths, causing the victim to become unconscious. The victim suffered a number of injuries, including a broken nose, which required surgery.
3. As I have already noted, in Wiltshire v Mafi the judge in the first instance appeal from the Magistrates Court had set aside a sentence of 15 months and substituted a term of 12 months' imprisonment, suspended for 9 months. Having reviewed a number of cases, the Court of Appeal said at [43]:

The review of sentences in these cases suggests that a sentence of 12 months' suspended imprisonment is usually given for assaults less serious than the assault which occurred here.

1. The latter statement has on occasions been interpreted as suggesting that for an offence of assault occasioning bodily harm that is less serious than the offence in Wiltshire, the usual sentence is one of 12 months' suspended imprisonment.[90] With respect to those who may hold that view, it seems to me that it is not reasonably open, having regard to the context in which the statement was made by the court in Wiltshire. The sentence of 12 months' suspended imprisonment is what had been imposed by the judge at the first instance appeal after setting aside the term of immediate imprisonment imposed by the magistrate in that case. In my opinion, all that the Court of Appeal was saying was that, on a review of other cases, it was not usual for such a sentence to be imposed in respect of an assault as serious as that in Wiltshire. Usually, the cases in which such a sentence would be given would be where the assaults were less serious than in Wiltshire. Obviously, the range of cases less serious than Wiltshire would include cases attracting fines through to suspended terms of various durations. They would also include cases in which immediate imprisonment has been upheld. Senior Counsel for the appellant agreed at the hearing of the appeal that the court in Wiltshire was not suggesting there was a tariff for assaults less serious than in that case, or that immediate imprisonment would never be appropriate for such offences.
2. There are aspects of Spirovski which would also place it into a more serious category. The offender committed the offence while working as a security officer at a tavern, a role in which he was meant to protect patrons. The victim was a patron who was refusing to leave. The single punch to the victim's face was inflicted with such force that the victim suffered facial fractures extending to both sides of the face, requiring surgery and the insertion of plates.
3. The circumstances in Hooper involved a single punch to the victim which rendered him unconscious, causing him to fall to the ground unprotected and suffer a head injury, which ultimately resulted in his death. However, the bodily harm in respect of which he was sentenced was regarded as being at the lower end of the scale, being minor injuries to the face. The offender had gone looking, in an angry state of mind, for a person he thought had assaulted his son. However, the assault on the deceased was indiscriminate and committed at the front of the deceased's home, which were aggravating factors. While that feature was absent in this case, the use of unprovoked, indiscriminate violence in a public place where people gather for entertainment is also an aggravating factor.
4. In my opinion, on close analysis of the cases in which immediate imprisonment was upheld or reinstated, the differences which may place those cases at a more serious level can reasonably be regarded as reflected in the longer terms in those cases. The same may be said about any differences in the personal circumstances of the offenders in those cases when compared with those of the appellant.
5. Further, close analysis of the cases in which suspended imprisonment has been substituted does not compel the conclusion that a term of immediate imprisonment was not open in this case. The outcomes in those cases reflected the particular circumstances of the offending and the offenders, none of which were completely analogous with the present case, as I noted earlier. They give pause for consideration of whether a suspended sentence may have been appropriate in this case, but the question ultimately is whether it was open to her Honour to conclude it was not.

1. The appellant's submission that a term of immediate imprisonment was unreasonable or plainly unjust in this case relies essentially on his youth and prior good character. Those are the two most significant factors that are said to render a term of immediate imprisonment wrong in principle.
2. The reasons why an offender's youth will generally be regarded as a significant mitigating factor which militates against an immediate term of imprisonment are well known. A youthful offender may be less capable of mature reflection and proper judgment than an older offender in circumstances that have led to the commission of an offence. That may be relevant to the offender's level of moral culpability and to their suitability as a vehicle for general deterrence. The courts also have regard to the potential consequences of imprisonment on a youthful offender. The burden of a term of imprisonment may be greater for such an offender and there is the risk that imprisonment will corrupt rather than rehabilitate the offender. However, these considerations do not preclude the imposition of immediate imprisonment in an appropriate case. The proper approach was explained by McLure P in Fogg v The State of Western Australia [2011] WASCA 11 at [13]:

The courts do not ordinarily impose a term of immediate imprisonment on young or youthful offenders of prior good character without considerable pause and reflection. However, there are circumstances where the seriousness of the nature and circumstances of the offending require the ultimate penalty, even if the offenders are young children: JTP v The State of Western Australia [2010] WASCA 191; A Child v The State of Western Australia [2007] WASCA 285; TL (a child) v The State of Western Australia [2005] WASCA 173 [19]. Other circumstances where youthful offenders of prior good character will ordinarily receive the ultimate penalty is if the offence is prevalent among young people, as in drug trafficking: The State of Western Australia v Johnson [2010] WASCA 187 [25].

1. In Fogg, the court was dealing with an 18yearold offender with no prior criminal record who had been convicted of one count each of deprivation of liberty, aggravated burglary of a dwelling, aggravated armed robbery and gaining a benefit by fraud. The sentence of 2 years' imprisonment at first instance was not disturbed. As McLure P noted in that case,[91] the circumstances of the offending were at the high end of the scale of seriousness for crimes of that nature and outweighed the mitigating factors personal to the offender. Those factors had been reflected in the significant abridgment of the length of the sentences.
2. I note also that the offender in Griffiths v Procopis was younger than the appellant by two years.

1. The respondent submitted that, approaching the matter most favourably to the appellant, this could be regarded to be a borderline case. It referred to the proposition expressed in Spirovski v The State of Western Australia that, in a borderline case, it may be reasonably open to impose different types of sentences.[92] In Spirovski, support for that proposition was found in the reasons of McLure P (Mazza J, as he then was, agreeing) in Fogg v The State of Western Australia [2011] WASCA 11, where her Honour said:[93]

Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decisionmaker has to be positively satisfied that a lesser sentence is not appropriate.

1. Like this case, Fogg was a case in which the question was whether the sentencing judge had erred in imposing an immediate term of imprisonment, the appellant's contention being that a suspended imprisonment order could not be excluded as appropriate. The State, in that case, submitted that the appellant had to demonstrate that a term of immediate imprisonment for the offences was unreasonable or unjust (manifestly excessive), and it was not sufficient for the appellant to demonstrate that the option of suspension (conditional or otherwise) was reasonably open in all the circumstances of the case.[94] In respect of that point, McLure P concluded:[95]

In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option.

1. The role of discretionary judgment in the context of s 39(2) of the Sentencing Act was explained by her Honour as follows:[96]

Section 39(2) of the Sentencing Act sets out the sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. The term 'appropriate' in its statutory context signifies the conclusion reached by the decision-maker after the exercise of the sentencing discretion. The concept of a discretion is explained by the High Court in Coal and Allied Operations v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ said:

'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result.' Rather, the decisionmaker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment [19].

1. The sentencing discretion conferred on a judicial officer under the Sentencing Act falls into the first category referred to by the plurality in Coal and Allied Operations.

According appropriate weight to the sentencing court's discretion

1. The importance of according proper weight to the sentencing court's discretion was discussed by Martin CJ in Scolaro v Shephard:[97]

The principle that a court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion is a principle of the utmost importance to the administration of criminal justice (see Lowndes v The Queen [1999] HCA 29; 195 CLR 665; House v The King [1936] HCA 40; 55 CLR 499). It is a principle which should not be diminished or devalued by over-enthusiastic appellate intervention in the sentencing process. Any erosion of that principle erodes the integrity of our systems for the administration of justice, and would convert sentences imposed at first instance to a kind of provisional sentence until confirmed on appeal. The public interest in the finality of the sentencing process requires that appellate intervention be limited to demonstrated cases of error and not extend to differences of opinion within a range of sentences reasonably open. This is, of course, not to say that a sentence which is manifestly excessive may not demonstrate error, but it is to acknowledge the long-established principle that manifest excess will not be established merely because an appellate court would have imposed a different sentence.

1. His Honour went on to note that the lower courts of this State are charged with the responsibility of passing sentence in the vast majority of the cases coming before the criminal courts of this State.[98] His Honour referred to relevant statistics and compared the relative number of cases in the superior courts, noting of course that the penalties imposed in the superior courts are for more serious offences. His Honour then made the following comments with which I respectfully agree:[99]

However, these observations reinforce the public interest in the appellate function of this court being exercised with due respect and deference to the decisions of judicial officers who are charged with the responsibility of passing sentence in the large number of cases with which they deal on a daily basis. Magistrates in particular are well placed to identify trends in offending behaviour, and to impose sentences which best protect the community having regard to those emerging trends, given the large volumes of cases with which they deal.

1. Scolaro involved an unlawful wounding in which a glass had been used. Martin CJ considered the seriousness and prevalence of such offending to be significant in determining what would ordinarily be an appropriate sentence.
2. In this case, the magistrate was well placed to be aware of the prevalence of the kind of assault committed by the appellant and the community concerns in respect of such offending. She was also well placed to assess the seriousness of the offending relative to other cases of assault occasioning bodily harm dealt with in the Magistrates Court.

1. During the hearing of the appeal, I queried with the parties whether her Honour should have given consideration to partial suspension of the sentence, and whether that was a sentence she was required to exclude before determining that only a sentence of immediate imprisonment (without any suspension) was appropriate. In particular, I queried whether a partially suspended sentence would achieve the need for general deterrence more effectively than a fully suspended sentence.
2. There can be no doubt, in my opinion, that a partially suspended sentence should be regarded as falling between a conditionally suspended sentence and immediate imprisonment in terms of the hierarchy in s 39(2) of the Sentencing Act, as any sentence that removes the offender's liberty would be regarded to be harsher than a suspended sentence.
3. The parties filed supplementary submissions addressing the issue. It is not necessary to deal with it any further, as both parties contend in effect that a partially suspended sentence would not serve sentencing objectives any more effectively than the sentence imposed by the magistrate, if any term of imprisonment to be served is considered to be appropriate. From the appellant's perspective, any period of incarceration shorter than the non-parole period he would be required to serve under the sentence imposed by the magistrate could serve no rehabilitative purpose. From the respondent's perspective, a partially suspended sentence might be considered appropriate where the court concluded that there was a need for the offender to serve part of the sentence because of the seriousness of the offence, but it was not considered that the offender required supervision on parole for the balance of the sentence. However, it maintained that an immediate term of imprisonment with parole was appropriate in this case.
4. I accept the submission that, if it is appropriate for the appellant to serve any term of imprisonment imposed, a partially suspended sentence would not serve any sentencing objective in this case that will not be served by the sentence imposed by the magistrate.

1. Having regard to all the relevant factors I am required to take into account on an appeal against sentence, and according the appropriate weight to the magistrate's sentencing discretion, I am not persuaded that a term of 9 months' imprisonment with eligibility for parole is manifestly excessive.
2. As to the length of the term imposed, it appears to me to be broadly within the range of terms of imprisonment imposed in cases which bear comparison (whether immediate or suspended).
3. As to the type of sentence, it may be that this is one of those limited borderline cases referred to in Fogg v The State of Western Australia, in which different types of sentence may be reasonably open, notwithstanding the need for the sentencing officer to be positively satisfied that a lesser sentence is not appropriate. Whether or not that is so, the question is whether it was reasonably open to her Honour to impose the sentence she did.
4. In my opinion, having regard to the circumstances of the offending as found by the magistrate, the appellant's personal circumstances and the cases referred to in the appeal by way of comparison, it was reasonably open to her Honour to conclude that a term of immediate imprisonment was the only appropriate sentence.
5. Consequently I make the following orders.

1. Leave is granted in respect of each of the grounds of appeal.
2. The appeal is dismissed.
3. The appellant is ordered to serve the sentence of 9 months' imprisonment imposed by the Deputy Chief Magistrate on 10 January 2018.
4. As was ordered by her Honour, the appellant will be eligible for parole.

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

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE FIANNACA

[1] Criminal Appeals Act 2004 (WA) s 9(1).

[2] Criminal Appeals Act 2004 (WA) s 9(2).

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

[4] Criminal Appeals Act 2004 (WA) s 8(1)(a)(i).

[5] Criminal Appeals Act 2004 (WA) s 8(1)(a)(iii).

[6] Which are dealt with in pt 3 of the Criminal Appeals Act.

[7] Lowndes v The Queen (1999) 185 CLR 665 [15]; Markarian v The Queen (2005) 228 CLR 257 [27]; Scolaro v Shephard [No 2] [2010] WASC 271 [200] (Martin CJ).

[8] In Chan v The Queen (1989) 38 A Crim R 337, 342, the terms were used by Malcolm CJ interchangeably.

[9] McCoombe v The State of Western Australia [2016] WASCA 227 [25]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J); [22] (Gaudron & Gummow JJ); [59] (Kirby J).

[10] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J).

[11] Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Mack v The State of Western Australia [2014] WASCA 207 [194] (Buss JA, Martin CJ & Mazza JA); McCoombe v The State of Western Australia [2016] WASCA 227 [25].

[12] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hajne J).

[13] Ngo v The Queen [2017] WASCA 3 [54]; McCoombe v The State of Western Australia [2016] WASCA 227 [26]; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26] - [28]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] [54].

[14] ts 6, 10/1/18. Numbering has been added and the formatting has been edited from the transcript for convenience. References at first instance to 'the accused' have been changed to 'the appellant'. Otherwise the text is as transcribed.

[15] The transcript records the magistrate as saying 'the accused's associate and his male associate', but this appears to have been a slip, as the facts read by the prosecutor on 2 January 2018 (ts 4) refer to the accused and his male associate'. There was no suggestion that there was a second male associate. Nothing turns on the mis-statement in the context of the grounds of appeal.

[27] ts 10 and 11, 2/1/18; ts 3, 10/1/18.

[36] Provided as a family member. See Sentencing Act s 23A.

[49] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [78] - [79].

[50] See the remarks quoted at [40] above.

[52] Sentencing Act s 4 ('prescribed' means prescribed in the regulations); Sentencing Regulations 1996 (WA) reg 6B.

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

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

[55] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [79].

[56] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [81] - [83].

[57] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [84] - [85].

[58] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86].

[59] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86].

[60] Appellant's written submissions [61].

[62] See the second quoted paragraph at [43] above.

[63] See the second paragraph quoted at [44] above.

[64] Powell v Tickner [2010] WASCA 224 [4] - [8] (McLure P); [87] - [97] (Buss JA).

[65] See the third paragraph quoted at [44] above.

[66] See the fourth paragraph quoted at [44] above.

[67] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86]. See [58] - [59] above.

[68] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86]. See [59] above.

[69] Why a partially suspended sentence would be grouped with conditional suspended imprisonment and a community-based order is not obvious, unless her Honour had in mind a conditional partially suspended imprisonment order. It is doubtful that the Sentencing Act allows for such an order, but the point is moot in this case.

[71] See [52] - [54]. See also Dinsdale v The Queen [13] - [15] (Gleeson CJ and Hayne J); Collins v The State of Western Australia [2007] WASCA 108 [12] - [18] (McLure JA); Skipworth v The State of Western Australia [2008] WASCA 64 [8] (McLure JA); Holden v The State of Western Australia [2009] WASCA 50 [20] (Owen & Miller JJA).

[72] Respectively, they allow the court to have regard to 'any relevant matter that has occurred between when the appellant was convicted and when the appeal was heard' (s 14(5)); order production of any record or thing that may be relevant to the appeal (s 40(1)(a)); and admit any other evidence (s 40(1)(e)). For the purposes of s 14(5), at the time the material was received, the appeal stood adjourned and was, therefore, still being heard.

[73] Criminal Code 1913 (WA) s 317(1)(b).

[74] Wiltshire v Mafi [2010] WASCA 111; (2010) 111 A Crim R 326 [26] (Pullin & Buss JJA, Mazza J).

[76] See Spirovski v The State of Western Australia [2017] WASCA 230 [58], where the court considered that the fact that the appellant's action had the potential easily to cause even more serious injuries than the complainant in fact suffered, was a relevant consideration in assessing the seriousness of the offence.

[80] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 (McHugh J [52] - [55] & Hayne J [157]; contra Kirby J [117], [123] & Callinan J [176] - [177]). See also Scolaro v Shephard [2010] WASC 271 [210] [211] and Hine v The State of Western Australia [2010] WASCA 216 [71] [72].

[81] Scolaro v Shephard [2010] WASC 271 [210]; Kenny v The Queen [2010] NSWCCA 6 [49] (Howie J); Einfeld v The Queen [2010] NSWCCA 87 [85] - [111] (Basten JA).

[82] Scolaro v Shephard [2010] WASC 271 [211].

[83] The State of Western Australia v Cheeseman [2011] WASCA 15 [75] (Buss JA, as he then was); Holden v The State of Western Australia [2009] WASCA 50 [43] (Wheeler JA).

[84] Holden v The State of Western Australia [2009] WASCA 50 [43].

[85] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] - [54].

[86] Spirovski v The State of Western Australia [2017] WASCA 230 [58].

[87] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [74], [80].

[88] Kennedy v The State of Western Australia [2017] WASC 156 [31] (Hall J).

[89] Kennedy v The State of Western Australia [2017] WASC 156 [26].

[90] For instance, that appears to be the view taken by Le Miere J in Cake v McDonald [2017] WASC 87 [22].

[91] Fogg v The State of Western Australia [2011] WASCA 11 [14].

[92] Spirovski v The State of Western Australia [2017] WASCA 230 [54].

[93] Fogg v The State of Western Australia [2011] WASCA 11 [9].

[94] Fogg v The State of Western Australia [2011] WASCA 11 [5].

[95] Fogg v The State of Western Australia [2011] WASCA 11 [10].

[96] Fogg v The State of Western Australia [2011] WASCA 11 [8].

[97] Scolaro v Shephard [2010] WASC 271 [200].

[98] Scolaro v Shephard [2010] WASC 271 [201].

[99] Scolaro v Shephard [2010] WASC 271 [202].