Citation : MAFI -v- WILSHIRE [2009] WASC 375

Criminal law - State appeal against sentence - Application of transitional provisions of Sentencing Act 1995 (WA) - Summary penalty and jurisdictional limit - Reduction for plea of guilty

Sentencing Act 1995 (WA), s 8(4)

Casserly v The Queen (Unreported, WASC, Library No 990164, 31 March 1999)

Chivers v The State of Western Australia [2005] WASCA 97

Evans v Vanderheide [2001] WASCA 352

H v The State of Western Australia [2006] WASCA 53

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

Johnson v Hayter [2001] WASCA 118

Kendall v Stewart [2005] WASCA 10

Kilner v The Queen [1999] WASCA 189

Lapa v The Queen [2008] NSWCCA 331; (2008) 192 A Crim R 305

Main v The State of Western Australia [2010] WASCA 28

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

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

O'Connell v Welsh [2005] WASCA 11

Poletti v Adams [2005] WASC 66

R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115

Ravi-Pinto v Power (Unreported, WASC, Library No 930647, 26 November 1993)

Richardson v Mulhall [2003] WASCA 283

Royer v The State of Western Australia [2009] WASCA 139

Sakkers v Thornton [2009] WASC 175

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

Tomasovich v Stjepic [2005] WASCA 7

Withnell v Walker [2005] WASCA 8

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 REASONS OF THE COURT: On 14 May 2010, after the appeal was heard, the court made orders allowing the appeal, setting aside the sentence imposed by McKechnie J on 11 December 2009 and, in lieu, substituting a sentence of 12 months' immediate imprisonment which the court ordered should be taken to have taken effect on 14 February 2010 and the respondent was made eligible for parole. These are the reasons for making these orders.

2 On 4 January 2009, the respondent committed a serious unprovoked assault on the complainant. The respondent was originally charged with assault occasioning bodily harm and robbery. The prosecutor received medical reports, some of which would have supported a charge of assault doing grievous bodily harm. The prosecutor took time to consider whether the more serious charges should be laid and on 16 June 2009 substituted the more serious charge and dropped the robbery charge. However, the prosecutor reconsidered and substituted the original charge of assault occasioning bodily harm for the more serious charge. The respondent then pleaded guilty. On 24 September 2009, the magistrate heard submissions and then sentenced the respondent to 15 months' immediate imprisonment.

3 The respondent appealed. McKechnie J allowed the appeal and re-sentenced the respondent to 12 months' imprisonment, suspended for 9 months. Between 24 September 2009 and 11 December 2009 the respondent served part of the term imposed by the magistrate before being released following his successful appeal.

4 This is an appeal against the judgment of McKechnie J.

The facts and submissions made to the magistrate

5 The facts were that at 4 am on 4 January 2009, the respondent who was 190 cm tall and of solid build, was outside a nightclub in Rockingham. He was employed as a crowd controller at the club, however he was not on duty that night. The complainant, who was 170 cm tall and of slim build, was also outside the club and was approached by the respondent. The respondent asked him for money. The respondent's wallet had been thrown towards a group of people that included the complainant. The respondent's request for money was an attempt to recover the wallet in the mistaken belief that the complainant had the wallet. The complainant said he did not have any money and the respondent then struck out at the complainant, slapping him hard on the left side of the face and punching the right side of the face. The punch knocked the complainant to the ground. The respondent again asked if the complainant had money and, in an effort to distract the respondent, the complainant said he did. While the complainant was lying on the ground the respondent kicked him hard in the stomach. The complainant got to his feet and ran across the road, but the respondent chased him and again struck him with an open hand causing the complainant to fall to the ground again. The respondent then stood over the complainant and kicked him a number of times to the stomach area before walking away. The complainant suffered injuries amounting to bodily harm, namely a lacerated spleen and lacerated kidney, which were managed by the insertion of a catheter and the administration of painkillers and antibiotics.

6 A victim impact statement was read to the court by the complainant. The complainant said in his statement that 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 injuries he sustained and he lost approximately six kilograms in body weight. After being discharged, he experienced difficulties eating and was bedridden for approximately two weeks. Emergency care was required on 12 January 2009 due to ongoing issues with kidney trauma for which he was hospitalised for 24 hours. He explained how his planned paid employment during his university break was cancelled, along with other activities. He said:

[M]y future health has consequently been affected due to the incident, as I now face increased risk of diabetes, kidney failure and other medical issues later on in life.

7 He also referred to the adverse financial impact in dollar terms and the adverse emotional impact of the assault.

8 The respondent had a previous conviction for assault occasioning bodily harm in 2007. This was an assault on a 15-year-old female who suffered pain and discomfort and as with the victim of the offence under review in this case, she was entirely innocent. The respondent had been fined following that conviction.

9 In submissions before the magistrate, the points of mitigation were that alcohol played a significant role in the respondent's offending; that the respondent had had no exposure to alcohol until he began working in the nightclub industry; that he had in consequence, very little awareness of the dangers of alcohol, and that since the offence the respondent had significantly reduced his alcohol consumption and had ceased working in the nightclub industry. Secondly, a pre-sentence report stated that the respondent had a large support network of family and friends and had implemented positive changes since committing the offence. Thirdly, the respondent was only 20 at the time of committing the offence and aside from the other conviction for assault, he did not have a criminal record. Fourthly, the respondent pleaded guilty at the earliest opportunity.

10 The prosecutor made submissions that the offence was 'in the upper end of bodily harm' and that it was a brutal assault that was aggravated by the fact that the victim attempted to escape but was pursued and assaulted again. During submissions the prosecutor said that in relation to the other offence of assault, the appellant had 'grabbed the 15-year-old girl by the throat and threw her to the ground'.

11 His Honour related the details of the charge, referred to the facts and noted that '[t]here is concern in the community about this type of violence, particularly outside and around nightclubs where people are charged with alcohol'. His Honour said:

It's true that [the victim] didn't receive any facial injuries ... and I have been invited to conclude that that distinguishes this matter from some of the other matters, but when someone is knocked to the ground and someone else kicks them in the way that the accused kicked the victim in this case, the internal damage and injuries are just as bad, if not worse, than facial injuries. As the victim has said, and as I can take judicial notice of, it may well be that these injuries will lead to other problems in the future, including, as he said, diabetes and other problems which may result from the injuries to his kidney.

12 His Honour referred to community concern about this type of violence, noted that there had been a previous conviction for assault, noted the submissions that the respondent came from a good family and that he had seen references indicating that the respondent had been well thought of and then noted that there was a need for both general deterrence and personal deterrence. His Honour then asked the respondent to stand and said:

You have heard what I have had to say, I just don't understand how someone can do what you did to this person on that day. I just don't know what was going through your mind at the time. I have taken into account what has been said. What I propose to do is sentence you to 15 months' imprisonment, to be served immediately. Because of what was in the pre-sentence report and the other matters, I will make you eligible for parole.

13 The grounds of appeal before McKechnie J were that:

1. The learned sentencing Magistrate erred both in law and in fact when he took 'judicial notice' of a medical matter stated by the complainant when he read out in court his victim impact statement.
2. The learned sentencing Magistrate erred both in law and in fact when he failed to take into account all relevant mitigating facts when sentencing the Appellant;

Particulars of relevant mitigating factors not considered:

1. the Appellant's offer to plead guilty to an offence of assault occasioning bodily harm at the first reasonable opportunity;
2. the Appellant's plea of guilty;

1. the Appellant's age;
2. his antecedents;
3. the Appellant's interest in engaging in victim mediation;
4. his sporting prowess as a youth (indicating his prospects for rehabilitation would be strong);
5. his good work ethic;
6. his stable relationship and pending fatherhood.

14 His Honour said in relation to the first ground:

The victim's statement was not accompanied by a medical report so it was no more than a lay opinion and therefore not probative. The medical effects of impact to spleen or kidney are not so well known that judicial notice can be taken of them. The magistrate was wrong to take account of them but the error is of no moment.

15 From this, it may be assumed that if this had been the only ground to succeed, the appeal would not have been allowed by reason of s 14(2) of the Criminal Appeals Act 2004 (WA) (which applies by reason of s 18). His Honour also said that there had been a misunderstanding about the previous assault because submissions were made to the magistrate that the respondent had grabbed the complainant by the throat. His Honour said in effect that although this was wrong, 'I do not think that it affected the sentence to any degree'.

The magistrate did not mention the plea of guilty or specifically any reduction in sentence because of the early offer to plead guilty. This was an error.

The maximum penalty the magistrate could impose was a sentence of 16 months' imprisonment (having regard to the summary penalty and the transitional provisions of the Sentencing Act 2003 and 2009). A sentence of 15 months does not take sufficient account of the mitigating factors I have just outlined or the plea of guilty. The sentence is excessive and requires correction.

18 McKechnie J therefore upheld the appeal and resentenced as indicated above.

The learned sentencing judge erred in law in finding that the maximum penalty available to the Magistrate was 16 months imprisonment and in finding, on that basis, that the Magistrate did not allow an appropriate reduction for the mitigating factors and the plea of guilty.

20 The submissions made by the parties revealed that this ground of appeal gave rise to three questions:

(a) Whether McKechnie J erred by stating that the transitional provisions of the Sentencing Act 1995 (WA) applied or applied to reduce the jurisdictional limit on the penalty the magistrate could impose.

(b) Whether his Honour was correct to conclude, as by inference he did, that any starting point the magistrate mentioned before allowing a discount for mitigating circumstances could not exceed the jurisdictional limit.

(c) Whether his Honour erred in finding that the magistrate failed to make an appropriate reduction for the respondent's plea of guilty and erred in law by not mentioning the plea of guilty.

Whether the 'transitional provisions' applied

21 One of the reasons why McKechnie J said that the maximum sentence the magistrate could impose was 16 months was because he considered that the transitional provisions applied. McKechnie J said:

The maximum penalty the magistrate could impose was a sentence of 16 months' imprisonment (having regard to the summary penalty and the transitional provisions of the Sentencing Act 2003 and 2009).

22 As a matter of law, for the reasons which follow, the transitional provisions did not apply to sentencing in this case even though when the offence was committed (on 4 January 2009) the transitional provisions were in force. Under the transitional provisions, a court sentencing a person to a fixed term had to impose a term that was two thirds of the fixed term that would have been imposed under the 'old provisions': Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, sch 1. On 14 January 2009, the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (Amending Act) came into effect. The Amending Act repealed that transitional provision. Under the new provisions inserted by the Amending Act, a court sentencing an offender could impose a penalty up to the statutory penalty for the offence: sch 1, cl 3A(4). More importantly in relation to this case, the new provisions applied to sentences imposed, 'even if the offence was committed before the relevant commencement': sch 1, cl 3A(2). In consequence, the transitional provisions did not apply to the sentencing of the respondent and the respondent accepts that is the position.

23 However, in the respondent's submission, the reference by McKechnie J [13] to the 'Sentencing Act 2009' should be construed as a reference to the 2008 Amending Act which commenced on 14 January 2009, perhaps impliedly submitting that his Honour did not take into account the transitional provisions. That submission must be rejected. McKechnie J unambiguously stated that the jurisdictional limit for the magistrate was 16 months 'having regard to the ... transitional provisions'. McKechnie J therefore erred in law in directing himself in those terms. Even if the transitional provisions had applied, his Honour would have erred in stating that the 'maximum penalty' the magistrate could impose was 16 months. That was never the case: see Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [24] - [25].

The effect of the jurisdictional limit in s 317 of the Criminal Code

24 As set out above, McKechnie J said that the maximum penalty the magistrate could impose was a sentence of 16 months and that a sentence of 15 months did not take sufficient account of the mitigating factors.

25 From this it may be inferred that his Honour considered that the starting point could not exceed the jurisdictional limit, which his Honour erroneously thought was reduced by the transitional provisions to 16 months, and that the magistrate had only allowed a discount of 1 month for the mitigating factors including the plea of guilty. With due respect to his Honour, the view that the starting point (for the calculation of a proper sentence) could never exceed the jurisdictional limit is incorrect.

26 Section 317 of the Criminal Code (WA) provides for a summary conviction penalty of 2 years' imprisonment for the offence of assault occasioning bodily harm. This is a jurisdictional limit, not a maximum penalty: Johnson v Hayter [2001] WASCA 118 (Miller J). In that case, Miller J said:

The learned Magistrate took time to consider the matter and later on the day of the plea delivered his reasons. After recounting the facts of the case the learned Magistrate stressed that it was important to appreciate the circumstances in which the assault had occurred, they being in the reception area of a primary school where the victim was a person who had responsibility. The learned Magistrate stressed that assault occasioning bodily harm was a serious offence and pointed out that it carried a maximum penalty of imprisonment for 5 years, although when dealt with summarily the maximum provided was imprisonment for 2 years or a fine of $8000. In this respect the learned Magistrate was correct to recognise that the statutory maximum for the offence of assault occasioning bodily harm is a sentence of imprisonment for 5 years, notwithstanding that when dealt with in summary jurisdiction that maximum is reduced. This was made clear in Ravi-Pinto v Power, unreported SCt of WA (Murray J); Library No 930647; 26 November 1993 and Casserly v The Queen, unreported; SCt of WA (Scott J); Library No 990164; 31 March 1999. In the latter case, Scott J made the following observations which are relevant to this case:

The appellant was charged with assault occasioning bodily harm under s 317(1) of the Criminal Code. That offence carries a maximum term of imprisonment of 5 years. The section does, however, provide that on summary conviction the maximum term is imprisonment for 2 years or a fine of $8,000. Whilst it is true to say that the term of 2 years' imprisonment without parole imposed by the learned Magistrate was the maximum that she was permitted by law to impose, it is not right to suggest that the penalty imposed was the maximum provided for the offence: in Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993 Murray J said at 13:

Of course it is the case that, upon indictment, the offence of burglary is punishable by up to 14 years imprisonment. The penalty of two years imprisonment, or a fine of $8,000, represented, in the circumstances of the case, the maximum punishment which may be awarded by a Court of Petty Sessions dealing with such a case upon the election of the defendant. It is a jurisdictional limit and in no sense a maximum penalty to be reserved for the worst cases of the type [10].

27 The views expressed in Johnston v Hayter by Miller J (as his Honour then was), Murray J in Ravi-Pinto v Power (Unreported, WASC, Library No 930647, 26 November 1993) and Scott J in Casserly v The Queen (Unreported, WASC, Library No 990164, 31 March 1999) have been followed or referred to in a number of subsequent decisions: see Evans v Vanderheide [2001] WASCA 352 [19] (Miller J); Richardson v Mulhall [2003] WASCA 283 [9] (Anderson J); Kendall v Stewart [2005] WASCA 10 [13] - [14] (EM Heenan J); O'Connell v Welsh [2005] WASCA 11 [31] (Pullin J); Sakkers v Thornton [2009] WASC 175 [80] (Simmonds J). Of critical importance is the fact that the Court of Appeal approved of what Miller J said at [10] in Johnston v Hayter: see Mourish v The State of Western Australia [2006] WASCA 257 [10] (McLure JA, Steytler P & Wheeler JA agreeing).

28 Unfortunately, Miller J expressed a different view in two other, later, decisions in which he did not mention Johnson v Hayter or Evans v Vanderheide. In Withnell v Walker [2005] WASCA 8 [12] - [13], Miller J held that it was wrong for a magistrate sentencing for a summary offence to use a starting point of 5 years' imprisonment, reduce that sentence to take account of mitigating factors and then determine if the final sentence was within the jurisdictional limit. Miller J held that the magistrate could not adopt a starting point that exceeded the jurisdictional limit. Miller J reiterated this view in Tomasovich v Stjepic [2005] WASCA 7 [13] - [17]. Miller J's views in Withnell and Tomasovich cannot be reconciled with the proposition in Johnston v Hayter that a magistrate dealing with an offence in a summary jurisdiction must consider the maximum statutory penalty, not just the jurisdictional limit. The author in Weldon Annotated Criminal Legislation: Western Australia [5.35] suggests that while a magistrate must consider the maximum penalty, not just the jurisdictional limit, it is not permissible to use the maximum penalty as the basis for the construction of a sentence in the summary jurisdiction. Consequently (the author suggests), if a magistrate determines that the offence is sufficiently serious to warrant a starting point greater than 2 years' imprisonment, the magistrate must remit the matter to a court with jurisdiction to impose the statutory maximum. That is not correct.

29 The reasoning of Miller J in Withnell and Tomasovich is not only contrary to local authority but also contrary to the reasoning in two New South Wales Court of Criminal Appeal decisions on comparable legislation. In Lapa v The Queen [2008] NSWCCA 331; (2008) 192 A Crim R 305 [17], it was held that it is open to a judge sentencing in summary jurisdiction to determine a starting point above the relevant jurisdictional limit. To support this principle, the court relied upon the reasons of Grove J (Spigelman CJ & Kirby J agreeing) in R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 [35] who reviewed similar legislative provisions in other States and who said that:

[W]here the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.

30 The approach in Lapa and Doan is also consistent with the reasons of Blaxell J in Poletti v Adams [2005] WASC 66. In Poletti, Blaxell J said:

It follows, in my view, that a Magistrate may sentence an offender to a term which falls below the cap set by the statutory conviction penalty, notwithstanding that the starting point in calculating that term was in excess of that penalty [24].

31 In our opinion Blaxell J correctly stated the law. The views expressed to the contrary by Miller J in Withnell v Walker and Tomasovich, are incorrect and should not be followed.

32 Thus, the magistrate did not err if he used a starting point which exceeded the jurisdictional limit. McKechnie J erred in concluding that the starting point could not exceed 16 months' imprisonment for the two reasons stated by us; that is, the transitional provisions did not apply and the magistrate was not obliged to take a starting point which did not exceed the jurisdictional limit. It is clear for the reasons given under the next heading, that the magistrate applied an appropriate discount for the plea of guilty. If the magistrate used a starting point at all, it was well in excess of the 16 months McKechnie J assumed he had used. McKechnie J did not perceive this as a possibility because he erroneously found that the magistrate was bound not to use a starting point which exceeded 16 months.

33 Thus in summary on this point, McKechnie J erred in finding that the discount for mitigating factors had to be applied to a starting point of 16 months and in failing to appreciate that a starting point could exceed the jurisdictional limit of 24 months.

Whether the magistrate erred by not expressly stating that the respondent had pleaded guilty

34 The appellant submits that McKechnie J erred in concluding that the magistrate erred in law by not specifically stating that the sentence was reduced to take account of the respondent's plea of guilty; and from that concluding that no proper discount had been given for the plea of guilty.

35 It is true that the magistrate did not expressly state that the sentence was being reduced to take account of the plea of guilty. Section 8(4) of the Sentencing Act provides:

If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.

36 However, a failure to comply with s 8(4) of the Sentencing Act is not per se an appealable error: Royer v The State of Western Australia [2009] WASCA 139 [59]. The respondent accepts that a failure to state in open court that a reduction for a plea of guilty has been made is not necessarily an appealable error but in effect contends (correctly) that error may be demonstrated if the sentence can be shown by other means not to have been discounted because of the plea of guilty.

37 The absence of any reference to actual consideration of a plea of guilty in sentencing may lead to an inference that the plea was not given any weight: see Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [40]; R v Thomson (2000) 49 NSWLR 383 [52].

38 The position was summarised by Steytler P in H v The State of Western Australia [2006] WASCA 53 where his Honour said:

Section 8(2) of the Sentencing Act 1995 (WA) provides that a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. Given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea: Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA) [10].

This summary of the present position was endorsed by Wheeler JA (Owen JA & Newnes JA agreeing) in Main v The State of Western Australia [2010] WASCA 28 [21].

39 In this case, the magistrate made no express reference to the plea of guilty in his sentencing remarks but it is obvious that the magistrate did take the plea of guilty into account. There are two reasons for saying so. First, the magistrate expressly stated that 'I have taken into account what has been said' (ts 3), this being a reference to the submissions made by the parties. The plea of guilty was referred to in the sentencing submissions several times (ts 2, 4, 5, 6). Secondly, the sentence of 15 months for the very serious offence committed in this case being a proper sentence reflects a substantial discount for the plea of guilty. It is not necessary to specify the amount of the discount given for the plea of guilty: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [74] - [78]; Worthington [41]; Chivers v The State of Western Australia [2005] WASCA 97 [66].

40 Thus, McKechnie J erred in concluding that the magistrate erred in law by not expressly stating that he had given a discount on account of the plea of guilty.

41 The appellant has established that errors were made by McKechnie J. Pursuant to s 14(1)(c) and (d) of the Criminal Appeals Act (which applies by reason of s 18) this court may allow the appeal, set aside the decision and sentence imposed by McKechnie J and substitute the decision that should have been made. In view of the errors identified, the appeal should be allowed and the sentence imposed by McKechnie J should be set aside.

42 The question then arises as to what sentence should be now imposed. Both parties agree that the appropriate range of sentences for assault occasioning bodily harm was identified by Wheeler JA in Holden v The State of Western Australia [2009] WASCA 50 [43] - [45]. Her Honour concluded [43] that under the post-transitional provisions, the range included sentences from 6 months' suspended imprisonment to 2 years' immediate imprisonment. Importantly, Wheeler JA also held that this range was appropriate in relation to sentences imposed by magistrates where the jurisdictional limit of 2 years' imprisonment applied.

43 The range of sentences imposed for this offence was also considered in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [166] - [173], Mourish [12] and Kilner v The Queen [1999] WASCA 189 [22]-[27]. 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.

44 There are several factors in this case which made this a serious offence. Firstly, the assault was entirely unprovoked. Secondly, the respondent attacked the complainant a number of times, including chasing him when he tried to flee. This makes the offence more serious than one which involves only one attack. Thirdly, the assault caused the complainant to suffer serious internal injuries, including laceration of the spleen and kidneys, which demonstrates the force of the assault. The complainant's victim impact statement, which was read out before the magistrate, demonstrates the serious physical, financial and psychological effect of the assault on the complainant. Fourthly, the respondent has a prior conviction for assault, albeit that the offence was not as serious as the prosecutor indicated to the magistrate. On the other hand, there were the factors of mitigation mentioned above.

45 In accordance with s 6(2) of the Sentencing Act, the seriousness of the 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 the victim of the offence, any aggravating factors and any mitigating factors. Pursuant to s 6(4), this court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or that the protection of the community requires it.

46 The statutory penalty for the offence under s 317 of the Criminal Code is 5 years' imprisonment. While the respondent's criminal record does not increase his culpability, the respondent's conviction for a minor assault means that he cannot be sentenced on a more lenient basis as a first time offender. The mitigating factors are those already mentioned. The circumstances of the commission of the offence have been mentioned. The vulnerability of the complainant by reason of the size and weight disparity between the respondent and the complainant is also material. Taking into account all these factors, imprisonment is the only appropriate sentence. Taking into account again the relevant factors which lead to the conclusion just stated, it was not appropriate to suspend the term of imprisonment which was imposed by this court.

47 The sentence of 15 months' immediate imprisonment was the appropriate sentence to impose at the time the magistrate imposed the sentence. However, s 14(5) of the Criminal Appeals Act states that this court may have regard to any relevant matter that has occurred between when the respondent was convicted and when the appeal was heard.

48 There are two particularly relevant matters that have occurred between the time when the respondent was convicted and the date when this appeal was heard. Firstly, the appellant was in prison serving the sentence imposed by the magistrate between 24 September 2009 and 11 December 2009. Secondly, the steps which the respondent had taken to reform himself have continued. He has obtained employment away from the nightclub industry - he now works as a scaffolder - and he is now a father. Taking those factors into account, the court considered that there should be a sentence of 12 months' immediate imprisonment accompanied by an order pursuant to s 41(1)(a) of the Criminal Appeals Act, that the sentence 'be taken to have taken effect on a date before the date of the order', namely 14 February 2010. The court recognised that the respondent had not in fact been in custody in the period between 14 February 2010 and the date of the order, 14 May 2010. It was appropriate that the respondent be made eligible for parole. Section 34(2) of the Sentencing Act states that:

If a court sentencing an offender imposes a fixed term (as defined in section 85), the court is to state in open court the minimum period that the offender, as a result of the sentence and the operation of this Act, will serve in custody in respect of the term or, if more than one term is imposed, in respect of the aggregate of the terms.

49 The consequence of the orders which were announced on 14 May is that the respondent will be eligible to be released on parole 6 months from the date on which the sentence is taken to have taken effect. He will therefore have to serve another 3 months from 14 May 2010 before he may be released on parole. The court made this statement in open court when announcing the orders on 14 May 2010.