Criminal law - Sentencing - Unlawful wounding - Whether suspended sentence adequately considered - Whether adequate credit given for personal factors and early guilty plea

Sentencing Act 1995 (WA), s 6, s 39, s 76

Chan v The Queen (1989) 38 A Crim R 337

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

Etrelezis v The Queen [2001] WASCA 327

Evans v Vanderheide [2001] WASCA 352

House v The King [1936] HCA 40; (1936) 55 CLR 499

Janerka v Bethell [2002] WASCA 198

Johnson v Hayter [2001] WASCA 118

Long v Mayger [2004] WASCA 41

Messaoui v The Queen (Unreported, WACCA, Library No 92101, 4 December 1991)

Nevermann v The Queen (1989) 43 A Crim R 347

Stark v The State of Western Australia [2007] WASCA 44

Walker v Allen [2006] WASC 89

1 HALL J: On 6 June 2009 the appellant was socialising with friends at the Hyde Park Hotel. A person in the appellant's group became involved in an argument with another man near the dance floor. The argument escalated to involve pushing and shoving and the appellant became involved. At this time the man who was later to become the victim of unlawful wounding was rugby-tackled by the appellant. The parties then separated and the appellant walked outside.

2 About 5 - 10 minutes later the appellant walked back into the premises, took a glass from another patron standing near the dance floor and walked over to the victim. The victim was standing with his back to the appellant who then struck the victim to the left side of his head with the glass that he was holding. The victim received three lacerations to his face in the vicinity of his left eye which required five stitches. There followed further fighting in which the appellant also suffered head wounds.

3 On 7 August 2009 the appellant appeared in the Magistrates Court at Perth and pleaded guilty to one charge of unlawful wounding: s 301(1) Criminal Code (WA). After hearing the facts, the magistrate adjourned the matter to 10 September 2009 and ordered that a pre-sentence report be obtained. On 10 September 2009 the magistrate heard sentencing submissions and then imposed a sentence of 18 months' immediate imprisonment. The appellant appeals against that sentence.

1. The learned Magistrate erred in law by failing to properly consider all other sentencing options available in that he:

1. Did not take sufficient or proper consideration of the non-custodial sentences available under Parts 3A, 8, 9 and 10 of the Sentencing Act 1995; and 2. Did not give proper or adequate consideration to the principle sentencing requirement that a custodial sentence is a last resort; or

1. Did not properly or adequately consider Section 76 of the Sentencing Act 1995 in suspending the term of imprisonment.
2. The learned sentencing Magistrate erred in law in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all of the circumstances.

Ground 1 - were alternative options to imprisonment considered?

5 After reciting the facts his Honour referred to the seriousness of this offence and to the maximum penalty on summary conviction of 2 years' imprisonment. His Honour referred to the fact that the appellant had two previous convictions for violence related offences for which he had been fined. He also noted that the appellant had taken steps to overcome personal difficulties. His Honour also referred to the appellant's good work history, good prospects and to the strong family who was able to support him. His Honour then said:

There is a need in these courts for both a specific deterrence and a general deterrence. The need for a specific deterrence for Mr Duggan may well be diminished by his own efforts and his own appreciation of the fact that what he has done is dreadfully wrong and that he has to do something about it. The need for general deterrence continues.

We are inundated with reports of alcohol-fuelled violence in Perth and, one suspects, every other city, which appears to be unending. These courts are constantly having to deal with charges where someone has been seriously assaulted and, invariably, the defendant's response is he was drunk at the time. There appears to be, however, no attempt to reduce that tendency to go out drinking. People are still drinking, getting involved in this violence.

I think it's essential, necessary, for courts to take a stand with people who smash glasses and bottles into other people's face, and send a message to all in society, if you get drunk and you perpetrate this style of assaults, where you smash a glass or a bottle into someone's face, the message has got to be that the result will be a prison sentence. I think that is what has to happen in this case.

In this matter, Mr Duggan will be sentenced to 18 months' imprisonment, eligible for parole. I have, of course, as I am required to do, given consideration to suspending that sentence. I don't think it's appropriate to suspend the sentence. I think it's appropriate, as I indicated, for the message to go out that if you smash a bottle or glass into someone's face, expect a prison sentence.

The offence itself is so serious that an individual's background should not outweigh the necessity for such a sentence. So, Mr Duggan, you are sentenced to 18 months' imprisonment, eligible for parole (ts 7 - 8).

6 A sentence of imprisonment should not be imposed unless the seriousness of the offence is such that only imprisonment can be justified: s 6(4) Sentencing Act 1995 (WA). Section 39(2) of the Sentencing Act provides a list of sentencing options. A court cannot use a sentencing option in s 39(2) unless it is satisfied that it is not appropriate to use any of the options listed before that option. A sentence of imprisonment is the ultimate option.

7 Ground 1 refers to options under pt 3A, being a pre-sentence order; pt 8, being a fine; pt 9, being community based orders; and pt 10, intensive supervision orders. It is true that the magistrate did not specifically refer to these options. However, a magistrate is not required to state that all the alternatives have been considered and excluded; it is enough that in general terms there is an indication that other alternatives have been considered and the conclusion reached that the only appropriate sentence is one of imprisonment: Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Wallace J).

8 It is not wrong for a magistrate to form the view that in general terms the starting point for unlawful wounding of the type involved here is a term of imprisonment: Evans v Vanderheide [2001] WASCA 352. That is not to say that a conviction for unlawful wounding will necessarily or always attract a sentence of imprisonment: Messaoui v The Queen (Unreported, WACCA, Library No 92101, 4 December 1991) (12) (Malcolm CJ, Pidgeon and Nicholson JJ). I also accept that the community views offences of this nature very seriously. The views of the magistrate regarding the increasing occurrence of alcohol-fuelled violence are also deserving of respect.

9 In the circumstances of this case, for the magistrate to come to a conclusion that a sentence of imprisonment was the only option, notwithstanding that non-custodial options were not specifically referred to, does not indicate error. I am unable to accept that his Honour failed to consider either at all or sufficiently the existence of the other options referred to. Nor can I accept that his Honour failed to appreciate that a sentence of imprisonment was one of last resort.

10 As to whether there was a failure to consider s 76 of the Sentencing Act in regards to a suspended sentence, that provision permits a sentence of imprisonment to be suspended if such a sentence would otherwise be appropriate. An immediate sentence of imprisonment should not be imposed if a suspended sentence would be appropriate.

11 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Kirby J held that there was a two stage process required by s 76. The first stage involves looking at all of the relevant factors to determine whether a sentence of imprisonment is the only appropriate option. The second stage involves examining all the same considerations again in determining whether to suspend the term of imprisonment. Kirby J (with whom Gaudron and Gummow JJ agreed on this point) held that rehabilitation was not the only relevant factor in considering whether suspension was appropriate and that all of the relevant circumstances needed to be considered. It follows that a suspended sentence may be appropriate in cases where rehabilitation is not an issue.

12 The seriousness of a particular offence is one matter that can be taken into consideration in deciding whether to suspend a sentence. It is not the only factor. Consideration must be given afresh to all of the circumstances, including those personal to the offender. His Honour did refer to whether the sentence should be suspended and came to the conclusion that it was inappropriate to do so. The only factors he specifically referred to in regard to that conclusion were general deterrence and the seriousness of the offence.

13 General deterrence is an important consideration. In Long v Mayger [2004] WASCA 41 it was held that a magistrate who had imposed a sentence of 11 months' imprisonment for an unlawful wounding that occurred in similar circumstances to the present case had erred by failing to consider all of the relevant circumstances afresh when turning to the question of whether the sentence should be suspended. In that case, Steytler J held that the magistrate had failed to take into account a number of favourable personal circumstances of the offender including his youth, good antecedents and excellent prospects of rehabilitation. In that case the magistrate referred briefly to a suspended sentence saying that he had considered it and thought it inappropriate, referring to society's expectations that behaviour of the type ought to be dealt with by an immediate prison sentence. McKechnie J held that whilst this indicated some consideration of a suspended sentence, it was not adequate consideration having regard to the appellant's youth and antecedents.

14 In the present case the magistrate referred to a suspended sentence in much the same way as in Long v Mayger. His Honour also said that the appellant's background did not outweigh the necessity for an immediate term of imprisonment. Whether it can be concluded that he failed to give adequate consideration to a suspended sentence turns upon whether there were factors in this case that made a suspended sentence a viable alternative to immediate imprisonment and one requiring more detailed consideration.

15 As I have noted, in Long v Mayger the appellant was very young, only 18 years old. As opposed to that, the appellant in this case is 28 years old. The appellant in Long v Mayger had good antecedents whereas the present appellant has two prior offences for assault. It would be simplistic, however, to assume that the absence of factors which were significant in another case as indicating the appropriateness of a suspended sentence will mean that a suspended sentence in this case in inappropriate.

16 In Long v Mayger Steytler J set out a range of other factors which may be relevant in deciding whether or not to suspend a sentence. These include rehabilitation; seriousness of the offence; whether there is any element of persistence; general deterrence; personal factors to the offender; the need to demonstrate condemnation of offences of the kind; and reasons militating in favour of an exercise of mercy. His Honour then said:

The personal mitigating circumstances of the offender which must be considered (at both stages of the sentencing process) include such circumstances as the fact that the offender has no prior convictions: see, for example, R v Gillan [1991] FCA 184; (1991) 100 ALR 66 at 71 (although the existence of prior convictions, even convictions which have carried sentences of imprisonment, is not necessarily a bar to the imposition of a suspended sentence: see Hauff v SA Police (1994) 63 SASR 286 and Walker v SA Police (1993) 61 SASR 159 at 162); youth (for example, Hauff at 293); advanced age (Wacyk at 536 - 537); illness (Hauff, at 293); the fact of steady continuing employment (Gillan, at 71) or good prospects of education or employment (Hauff, at 294) and the fact of the provision of 'genuine information to the authorities about the workings of organised crime' (Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 239, per Deane and McHugh JJ) [27].

17 In this case the appellant did have a number of personal circumstances which were indicative of a suspended sentence being appropriate. The pre-sentence report revealed that the appellant had had an unsettled childhood, his parents separating when he was 6 years old. He had moved between his parents over the years and in more recent times had a strained relationship with his father. He had had a relationship with a woman which lasted for five years from the time he was 21 and which produced a son. After that relationship failed in 2007 the appellant suffered anxiety, frustration and low self-esteem. The end of the relationship resulted in him having limited access to his son and created financial stress and the loss of his home. There were medical reports indicating that he was suffering from severe depression and in these circumstances had resorted to abusing alcohol. The pre-sentence report referred to the benefit that would be obtained from a sustained period of psychological intervention and that this could be achieved by program and supervision requirements.

18 The appellant had a good work history and excellent prospects. At the time he came to be sentenced he was an apprenticed diesel mechanic in his third year. He had a good academic record, was earning a significant income and was described as extremely hardworking.

19 By the time the appellant came to be sentenced he had taken steps to attend to his own rehabilitation. This included obtaining medical treatment in respect of his depression, for which he had been prescribed medication. He had also commenced attending Alcoholics Anonymous and had consulted a clinical psychologist. He had recognised the need to change his lifestyle and had returned to live with his mother and stepfather, who were providing him with significant emotional support. He had expressed remorse to the author of the pre-sentence report, an understanding for the consequences of his actions and empathy for the victim.

20 Accordingly, notwithstanding that the personal circumstances of the appellant were different to those of the appellant in Long v Mayger, there were factors of significance in this case that favoured a suspension of the sentence. It should also be noted that the appellant pleaded guilty at the first reasonable opportunity, whereas the appellant in Long v Mayger was found guilty after a trial.

21 Given the favourable factors that existed in this case, the manner in which the magistrate dealt with a suspended sentence failed to give adequate consideration to that option. In my view, his Honour, having quite correctly come to the conclusion that the circumstances of this offence were sufficiently serious that no sentence other than one of imprisonment was appropriate, failed to adequately consider anything other than general deterrence and the seriousness of the offending in determining that a suspended sentence was inappropriate. For these reasons, ground 1(c) must succeed.

Ground 2 - was the sentence manifestly excessive?

22 Sentencing involves the exercise of a judicial discretion. In House v The King [1936] HCA 40; (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 - 505).

23 In Chan v The Queen (1989) 38 A Crim R 337 Malcolm CJ said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).

24 The maximum statutory penalty for an offence of this type is 5 years' imprisonment, however, when dealt with summarily the maximum sentence is one of 2 years' imprisonment: s 301 Criminal Code. Notwithstanding that the maximum sentence that the magistrate could impose was one of two years, it is relevant to have regard to the statutory maximum, not merely the jurisdictional limit: Johnson v Hayter [2001] WASCA 118.

25 I was referred to a number of cases dealing with unlawful wounding. A number of them involved woundings occurring by use of a glass in licensed premises. The sentences imposed in those cases also take into account differing personal circumstances.

26 In Etrelezis v The Queen [2001] WASCA 327 a sentence of 3 years' imprisonment was varied on appeal by being suspended for one year. The original sentence had been imposed on indictment following a trial. In that case an important factor was that the action of the appellant was viewed as being a spontaneous reaction. In Janerka v Bethell [2002] WASCA 198 a sentence of imprisonment of eight months following a plea of guilty was upheld. I have already noted that in Long v Mayger a sentence of 11 months was suspended on appeal. In Stark v The State of Western Australia [2007] WASCA 44 the appellant was convicted after trial in the District Court and was sentenced to 2 years' imprisonment; leave to appeal that sentence was refused. In Walker v Allen [2006] WASC 89 a sentence of 9 months' imprisonment was suspended on appeal because it was found that the magistrate had failed to take into account factors that favoured suspension including that the appellant was employed full-time; had pleaded guilty; was remorseful; and that the action was unpremeditated. I note that in a number of those cases the injuries caused were significantly more serious than would appear to be the case here, though that may be seen to be fortuitous and does not significantly mitigate the offence.

27 Given the varying circumstances that may arise with respect to an offence of this nature, it would be unwise to suggest that there is a range within which sentences usually fall such that a sentence outside that range would be indicative of error. In any event, even if a range could be discerned from these cases, a sentence of 18 months' immediate imprisonment would not appear to be outside it (though that takes into account offences dealt with on indictment where the maximum is higher).

28 However, given that the maximum sentence available to the magistrate was one of two years and that the appellant entered a plea of guilty at the earliest stage, it does appear that the sentence imposed failed to take into account, or to adequately take into account, the value of that plea of guilty. To have reached a final sentence of 18 months the magistrate must have notionally considered a higher sentence which was then discounted to take into account the plea of guilty. Even if his Honour had considered that this offending was deserving of the maximum sentence available to him of two years, the sentence imposed of 18 months would not adequately give weight to any of the relevant mitigating circumstances and, in particular, the early plea of guilty. For this reason I am of the view that the sentence imposed manifests error.

29 When an appeal is allowed and it falls to the appellate court to resentence an offender, the sentencing discretion is to be exercised afresh. This enables the court to take into account additional material and any relevant matter that has occurred between when the offender was convicted and when the appeal was heard: s 14(5) Criminal Appeals Act 2004 (WA).

30 For the purposes of resentencing I have taken into account an affidavit filed on behalf of the appellant annexing additional materials. These confirm that the appellant has been attending a psychologist for treatment of anger and alcohol problems on a regular basis. The psychologist has assessed the appellant as being cooperative and genuinely motivated to change his life. The appellant ceased drinking alcohol some months ago and has been prescribed, and is taking, anti-depressant medication. There is also information confirming that the appellant has commenced an alcohol treatment program at Holyoake. A letter from the appellant's medical practitioner confirms that he is currently suffering anxiety and a major depressive disorder but has been compliant with all suggested treatment and is highly motivated to improve his mental health and stay abstinent from alcohol. A letter from his employer confirms that he has been employed as a diesel mechanic for the last two years and works six days a week on regular shifts. There is also information confirming that the appellant pays child support for his son, which would no doubt be imperilled if he were to be imprisoned and lose his job. Finally, there are a number of letters from members of the appellant's family confirming that he is now residing with his mother and stepfather, has significantly changed his lifestyle and is supported by them.

31 In the circumstances these additional materials serve to reinforce the appropriateness of a suspended sentence. The appellant has shown real resolve to address the issues that led to his offending. It is in both his own interests and the broader interests of the community that he continues to do so and a conditional suspended sentence would serve these interests. I also take into account that the appellant spent some time, albeit only two weeks, in custody prior to being bailed pending this appeal.

32 I allow the appeal, set aside the sentence imposed by the magistrate and impose a sentence of 12 months' imprisonment to be suspended for 12 months with program and supervision requirements.

33 To the extent that it may be necessary to clarify the basis upon which I resentenced the appellant, I make the following remarks.

34 On an appeal from the Magistrates Court the powers of this court are set out in s 14 of the Criminal Appeals Act 2004 (WA). This court can set aside a magistrates decision and pursuant to s 14(1)(d) substitute a decision that 'should have been made by the court of summary jurisdiction'. The power in s 14(1)(d) is limited to the making of sentencing orders that would have been available to the magistrate.

35 It was not open to the magistrate in this case to impose a conditional suspended imprisonment order (CSI order), however, that does not affect my findings of error (as they did not turn on any suggestion that such a sentence should have been imposed). Nonetheless, the question might arise as to the power of this court to make a CSI order when resentencing.

36 A CSI order may only be made by a prescribed court: s 81 Sentencing Act 1995 (WA). The prescribed courts are the Supreme Court, District Court, Children's Court and a speciality court: reg 6B Sentencing Regulations 1996 (WA). The phrase speciality court is defined in s 5 and pursuant to reg 4A of the Sentencing Regulations includes the Magistrates Court but only when sitting at Central Law Courts and when dealing with drug offences under the Misuse of Drugs Act 1981 (WA). Accordingly, this court would not have power under s 14(1)(d) to make a CSI order.

37 However, s 14(1)(i) gives the Supreme Court power to make 'any other order it thinks fit'. This is a broad power and one obviously intended to supplement that contained in s 14(1)(d). Section 14(1)(i) enabled the making of a CSI order in the circumstances of this case because:

1. the Supreme Court is a prescribed court and may make such orders in appropriate cases;
2. there is no prejudice to the appellant because the sentence imposed on appeal is of a lesser severity than that imposed by the magistrate;
3. whatever the rationale may be for not prescribing the Magistrates Court (other than in the limited way referred to), there is no reason why the Supreme Court should be constrained from imposing a CSI order where it most suitably meets the circumstances of the case; and
4. the offence in this case was an indictable offence, that, had it been dealt with in the District Court could have resulted in a CSI order.