CAKE -v- MCDONALD [2017] WASC 87 (31 March 2017)

4 The appellant was intoxicated at the time of the offence and was suffering significant financial difficulties and as a result was in the process of moving to Busselton.

5 The magistrate accepted that there were significant mitigating factors, including personal circumstances of the appellant. They included:

(1) the appellant pleaded guilty when he first appeared in court;

(3) the appellant was otherwise of good character; and

(4) the offence occurred almost 14 months before sentencing and the appellant had not offended in the meantime.

6 The magistrate's sentencing remarks included the following. First, the assault was a serious assault. The appellant is a much bigger person than the smaller, vulnerable victim. The assault was a sustained assault, not just a single act. The assault was unprovoked. The victim required medical attention. The appellant did not assist the victim. He left the vicinity. The offending was a 'savage, brutal and cowardly assault sustained over a period of time on a much more vulnerable smaller victim'.

7 Secondly, specific and general deterrence were required.

8 Thirdly, the decision of Hall J in Griffiths v Procopis [2012] WASC 40 (Griffiths) was particularly instructive in determining the appropriate outcome. The offending by the appellant was similar in a number of respects.

9 Fourthly, there are personal factors which must be taken into consideration. The appellant is in fulltime employment.

10 Fifthly, the seriousness of the offence is such that the only appropriate outcome is a term of imprisonment.

11 Sixthly, the term of imprisonment should not be suspended.

12 Seventhly, the appropriate sentence is a term of imprisonment of 12 months, reduced by 25% by reason of the guilty plea and further reduced for the other mitigating factors, such that the term of imprisonment is 8 months' immediate imprisonment.

13 Eighthly, the appellant's application for a spent conviction is dismissed because it is not established that the appellant is unlikely to commit such an offence again and in any event the appellant should not be relieved immediately of the adverse effect that a conviction might have.

14 At the hearing of the appeal the grounds of appeal were amended to substitute for the grounds of appeal in the appeal notice the following ground of appeal:

The learned sentencing judge erred in law in imposing a sentence that was manifestly excessive.

Particulars

The learned sentencing judge erred in imposing a sentence of 8 months imprisonment to be served immediately when it was open:

(1) to impose a sentence other than a sentence of imprisonment; or

(2) to suspend term of imprisonment,

having regard to the maximum penalty prescribed, the standards of sentencing customarily observed, the place that the conduct occupies on the scale of seriousness, and to the personal circumstances of the appellant.

15 The appellant requires leave to appeal. I am satisfied that the appellant's ground of appeal has a reasonable prospect of succeeding. Leave to appeal is granted on the appellant's ground of appeal.

16 The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and the Court of Appeal. Those principles include the following, as stated in Wilson v The State of Western Australia [2010] WASCA 82 at [2]:

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).

Manifestly excessive sentence - legal principles

17 The appellant asserts that the sentence of 8 months' immediate imprisonment is manifestly excessive. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

18 The maximum penalty for the offence of assault occasioning bodily harm without circumstances of aggravation is 5 year's imprisonment: Criminal Code s 317(1)(b).

19 The appropriate range of sentences for assault causing bodily harm was considered by Wheeler JA in Holden v The State of Western Australia [2009] WASCA 50 [43] - [45]. Her Honour concluded at [43] that the range included sentences from 6 months' suspended imprisonment to 2 years' immediate imprisonment.

20 The range of sentences imposed for the offence of assault causing bodily harm was also considered by Pullin and Buss JJA and Mazza J in Wiltshire v Mafi [2010] WASCA 111 (Wiltshire). At [43], having referred to a number of cases in which sentences were imposed for assault causing bodily harm, the court said that the review of sentences in those cases suggests that a sentence of 12 months' suspended imprisonment is usually given for assaults less serious than the assault which occurred in that case. The assault in this case is less serious than that under consideration in Wiltshire. In that case the offender had first slapped the complainant hard on the left side of the face and punched the right side of the face, knocking the complainant to the ground. While the complainant was on the ground the offender kicked him hard in the stomach. The complainant fled but the offender chased him and again struck him causing him to fall to the ground. The offender then stood over the complainant and kicked him a number of times to the stomach area. The complainant suffered a lacerated spleen and lacerated kidney which were managed by the insertion of a catheter and administration of painkillers and antibiotics. He urinated blood for 20 days following the assault. He was unable to eat solids while hospitalised in case emergency surgery was required due to the injuries he sustained and he lost about 6 kg in body weight. After being discharged, he experienced difficulties eating and was bedridden for about two weeks. Emergency care was required on one day as a result of ongoing issues with kidney trauma for which he was hospitalised for 24 hours.

21 In The State of Western Australia v Cheeseman [2011] WASCA 15 (Cheeseman) Buss JA, with whom Mazza J agreed, reviewed sentences imposed for the offence of assault causing bodily harm in a large number of cases at [73] - [79]. His Honour referred to Wiltshire and the statement of the court that an examination of the review of sentences carried out in a number of relevant cases suggested that a sentence of 12 months' suspended imprisonment is usually given for assaults less serious than the assault which occurred in Wiltshire.

22 Counsel for the respondent submitted that the observation in Wiltshire related to the particular circumstances in Wiltshire and ought not to be taken as a general statement of principle that assaults less serious than the assault in Wiltshire would usually attract a sentence of 12 months' suspended imprisonment. I do not agree that the statement by the court in Wiltshire is to be confined to the particular facts of that case. Their Honours referred to a number of cases before making the statement that the review of sentences in those cases suggest that a sentence of 12 months' suspended imprisonment is usually given for assaults less serious than the assault which occurred in that case. In Cheeseman Buss JA reviewed a large number of cases before referring to the statement of the court in Wiltshire that those cases suggested that a sentence of 12 months suspended imprisonment is usually given for assaults less serious than the assault which occurred in Wiltshire. The statement by the court in Wiltshire is not to be taken as a quasilegislative pronouncement. The appropriate sentence in each case must depend upon the circumstances of the case. Furthermore, there is a wide range of circumstances in which offences of assault causing bodily harm can occur and as a result it is difficult to discern any tariff. Nevertheless, the statements by the Court of Appeal in Wiltshire and Cheeseman are relevant in considering the standards of sentencing customarily observed with respect to the offence of assault causing bodily harm.

23 The offence committed by the appellant is serious. The appellant assaulted a smaller, vulnerable female victim. He dragged her by the hair and punched her to the face. The victim suffered a fractured nose and required medical attention. However, the offence was not towards the upper end of the scale of seriousness for offences of assault causing bodily harm. First, the assault was not planned or premeditated, it was a spontaneous response to the situation, albeit an unjustified and violent response. Secondly, the assault was not prolonged, it was of relatively short duration and did not consist of multiple blows. Thirdly, the appellant dragged the victim by her hair and punched her with his fist but did not kick, knee or strike the victim with any object. Fourthly, whilst the victim suffered a fractured nose, pain, discomfort and heavy bleeding and required medical attention there is no evidence that she required hospitalisation or suffered multiple or more serious injuries.

24 Senior counsel for the appellant, Mr Vandongen SC, submitted that the offence falls below the middle and towards the bottom of the scale of seriousness of offences of the kind in question. I agree. The offence is, for example, less serious than that in Griffiths, where the offender punched the complainant five times, kicked him in the head, kneed him twice to the head and then kicked the victim again causing the victim to lose consciousness.

25 The personal circumstances of the appellant provided significant mitigation, as the magistrate found.

26 I cannot intervene simply because had I been sentencing the appellant at the original hearing I might have imposed a sentence other than imprisonment. The question is whether it was open to the magistrate to find that the seriousness of the offence is such that only imprisonment can be justified. I am not satisfied that it was not open to the magistrate to find that the seriousness of the offence is such that only imprisonment can be justified.

27 It was only open to the magistrate to order immediate imprisonment if it is not appropriate to impose suspended imprisonment: Sentencing Act 1995 (WA) s 39(2) and (3). Having regard to the maximum sentence for the offence, where the offending conduct sits in the scale of seriousness of offences of its type, the standards of sentencing customarily observed with respect to the offence and the personal circumstances of the appellant, it was not open to the magistrate to find that it is not appropriate to suspend the term of imprisonment. The sentence imposed was manifestly excessive. The appeal must be allowed, the sentence imposed set aside and the appellant resentenced.

28 The appellant accepts that if the seriousness of the offence is such that only imprisonment can be justified, a term of 8 months' imprisonment is an appropriate term. I find that is correct. The appellant will be resentenced to a term of imprisonment of 8 months suspended for 12 months.