Chivers v The State of Western Australia

Criminal Appeals Act 2004 (WA), s 7, s 8, s 9, s 14

Sentencing Act 1995 (WA), s 6

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

Deville v Western Australia [2004] WASCA 264

Dinsdale v The Queen [2000] HCA 54

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

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

Lovatt v Western Australia [2004] WASCA 265

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Radebe v The Queen (2001) 162 FLR 313; [2001] WASCA 254

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465; 33 A Crim R 230

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

1 The appellant, Simon Esh, has obtained leave to appeal against a sentence imposed in the Mandurah Magistrates Court on 3 February 2009.

2 The question raised by the appeal is whether the magistrate, in sentencing the appellant to a term of imprisonment for 15 months' with eligibility for parole, imposed a sentence that was manifestly excessive given the circumstances of the offence and the antecedents of the appellant.

3 It appears from the relevant prosecution notice dated 12 August 2008 that the appellant was charged originally that on 3 April 2008 at Mandurah he unlawfully assaulted Michael Alexander Taylor and thereby did him bodily harm contrary to s 317(1) of the Criminal Code (WA); that is, the offence generally known as assault occasioning bodily harm. This charge arose out of an altercation that commenced on the evening of 3 April 2008 in the Slug and Hare Alehouse at Mandurah and led eventually to the death of the victim, Michael Alexander Taylor.

4 I will turn to the material facts in more detail later. For the moment, suffice it to say that in the course of the encounter two other individuals were thought to be involved in the conduct complained of, namely, a woman called Ms Elise Spark and another man.

5 I understand that there was a period of police investigation between the events on 3 April 2008 and the signing of the prosecution notice on 12 August 2008. Some telephone intercepts from Ms Spark's phone were obtained in the course of the investigation. When the matter was brought before the Magistrates Court initially the appellant entered a plea of not guilty to the charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. At that stage, the other man had not been apprehended and it was not known how that man and Ms Spark, being the other two individuals involved in the incident, would be dealt with.

6 In due course, an application was made to amend the prosecution notice with the amendment being effected on 11 December 2008 as evidenced by an endorsement on the prosecution notice. This led to the appellant being charged that on 3 April 2008 at Mandurah he unlawfully assaulted Michael Alexander Taylor contrary to s 313 of the Criminal Code. The appellant pleaded guilty to the amended charge.

7 The offence in question is generally known as common assault. As appears from a comparison of the prescribed penalties, common assault can be regarded as a less serious than assault occasioning bodily harm.

8 Section 313(1) of the Criminal Code reads as follows:

Any person who unlawfully assaults another is guilty of a simple offence and is liable -

(a) if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 3 years and a fine of $36 000; or

(b) in any other case, to imprisonment for 18 months and a fine of $18 000.

9 By way of contrast, s 317 of the Criminal Code provides that any person who unlawfully assaults another and thereby does that other person bodily harm is liable to imprisonment for 7 years if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation and in another case to imprisonment for 5 years. The summary conviction penalty in the first case is imprisonment for 3 years and a fine of $36,000, and in any other case is imprisonment for 2 years and a fine of $24,000.

10 I note in passing that the meaning of the term 'assault' is defined by s 222 of the Criminal Code. Put shortly, a person who strikes or otherwise applies force of any kind to the person of another without his consent, or who by an bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

11 As I have indicated, in response to the amended prosecution notice, the appellant pleaded guilty to a charge of common assault contrary to s 313 of the Criminal Code on 11 December 2008 and a conviction was recorded against him accordingly.

12 On the same day Ms Spark pleaded not guilty to a charge of common assault, with the result that the prosecution presented its case against her. She was eventually convicted and sentenced to a term of imprisonment of 10 months with eligibility for parole. It follows from this that in sentencing the appellant the magistrate was fully informed as to the circumstances of the incident and of the roles played by the appellant and Ms Spark respectively because he had tried the case against Ms Spark and heard the witnesses. The transcript concerning the sentencing of Ms Spark on 23 January 2009 forms part of the materials before me.

13 On 13 January 2009 at the Mandurah Magistrates Court the appellant was remanded in custody as a consequence of his plea of guilty pending the provision of a pre-sentence report. The appellant was interviewed at Hakea Prison in that regard on 20 January 2009. It appears that he was polite, cooperative and forthcoming with information throughout the interview process.

14 In due course a presentence report dated 29 January 2009 was prepared and was available to the sentencing magistrate at the next hearing on 3 February 2009.

15 It will now be useful to look at the material facts of the subject offence in more detail and the matters raised at the next hearing on 3 February 2009.

16 It appears from the magistrate's reasons for decision that the appellant arrived at the subject tavern on the night in question and was about to order his first drink when he noticed the victim. There had been a previous association between them. There was a scuffle and the intervention of security staff with the result that those involved were asked to leave the premises.

17 The magistrate then found that the parties left the hotel and walked towards the Mandurah foreshore. The appellant and his co-offenders; that is, Ms Spark and the other man, cornered the victim. Another argument took place in the course of which the appellant king hit the victim causing him to fall to the ground. The others went in punching and kicking with the result that the victim was momentarily left unconscious. However, when an ambulance arrived, the victim refused assistance and in due course went off to other premises with his friends. He died a week later. According to the magistrate, forensic evidence was unable to establish any precise link between the assault and the death.

18 In the course of his reasons for decision the sentencing magistrate made these observations at the hearing on 3 February 2009:

At an earlier hearing, I listened to the complete statement of material facts. I have just had a discussion with your counsel about aggression inside the premises of the Slug and Hare Tavern and there is evidence which suggests that you were aggressive and so, in order to put that in context, there is no suggestion of, that I would accept, that Mr Taylor was the aggressor. You were the one that approached him and you acted in, what I would call, an aggressive way.

You and others were evicted from the premises.

The evidence, which I have heard, suggests that you and the two others walked away towards the Brighton Hotel and then, having come around the corner from the premises known as Pronto Restaurant, you came into contact with Mr Taylor in circumstances where, as has just been outlined, you struck him to the head knocking him to the ground and then two others were involved in the assault.

The assault consisted not just of you knocking him to the ground but others then being involved in kicking him. There is no doubt whatsoever he was seriously assaulted but I note again, you pleaded guilty just to simply assault and not assault occasioning bodily harm and it is not possible to say, on the evidence before me, precisely what role each of the three persons played in the assault on Mr Taylor.

There could be no doubt that prior to the assault he had the appearance of a normal healthy member of the community and one week later he was dead as a consequence of a brain injury. There is no suggestion that there is a link, a provable link, between the death and the assault which you admit. I mention that because it plays a role in an assessment in your total involvement if there is some consideration when I take into account your plea of guilty and what normally flows from that.

19 The learned magistrate went on to note in the course of his reasons for decision that certain telephone conversations between the appellant and his co-offender, Ms Spark, were recorded as a result of the ongoing investigation after the incident which indicated that there was 'a total lack of remorse' on the part of the appellant and 'a clear intention', if possible, to frustrate any form of police investigation.

20 His Honour observed that although the appellant was not under any obligation to co-operate with the police and was entitled to make no comment in the course of a video record of interview, the matters just mentioned seriously undermined any submission that the appellant's plea of guilty was a reflection of remorse and contrition. His Honour added, however, that the appellant was nonetheless entitled to a discount for his plea of guilty 'somewhere in the range of 15%'.

21 Counsel's plea in mitigation had placed reliance upon the subject pre-sentence report. Accordingly, his Honour then proceeded to note that the report outlined the appellant's personal details, background, employment history and so on.

22 I will not traverse the contents of the report in their entirety. It is noted in the report that the appellant was born on 6 September 1979 in Bendigo, Victoria, where his family still resides. He left school at the age of 17 years and commenced employment in the building industry. His current employer spoke well of him and confirmed that he was willing to have him back at any time. The appellant reported having had a 9 year relationship with a previous partner, with one child of that union, but the relationship broke down due to work commitments.

23 The author of the report noted that the appellant was a 30-year-old man with an extensive history of convictions predominantly in respect of road traffic matters. He had served a short term of imprisonment. He had been subject to community based dispositions and had successfully completed his requirements in that regard, including completion of a voluntary program for his substance use issues. He was said to have stated a willingness to comply with any requirements the court might choose to impose. A check with Fines Enforcement Registry confirmed that the appellant had $5,119.25 in outstanding fines with a current time-to-pay arrangement in place.

24 Having referred to the pre-sentence report, the learned magistrate noted that he was required by the Sentencing Act to consider each of the sentencing options that are available. He then proceeded to review the options at some length, commencing at the lower end of the scale.

25 His Honour ruled out the possibility of a fine because it did not have sufficient 'deterrent impact', especially in circumstances where the appellant owed over $5,000 in outstanding fines and the payment arrangement was limited to $30 per fortnight. He ruled out the possibility of a community based order as a means of addressing inappropriate behaviour because the circumstances of the offence had to be characterised as of a more serious kind, being unlawful behaviour in which the appellant, apparently without being affected by alcohol at the time, initiated the aggressive conduct in the tavern. As a consequence of the appellant knocking the victim to the ground, by punching him to the head, others were involved in assaulting the victim.

So in my view the circumstances surrounding this offending behaviour are such that a sentence of immediate imprisonment is warranted. I have considered whether or not that sentence should be suspended and I reject that because, in my view, it would not meet the needs and expectations of the community or the aims of the sentencing process.

I have said that you are entitled to a form of discount bearing in mind that the maximum period of imprisonment available to the offence of this kind is 18 months, you are sentenced to 15 months' imprisonment and you will be eligible to parole. The sentence can be backdated to the date upon which you went into custody for the purpose of the preparation of this report, which was 13 January.

27 The magistrate's earlier observations showed that he was fully aware that he was dealing not with the original offence of assault occasioning bodily harm but with a non-aggravated common assault for which the maximum penalty upon summary conviction was a term of 18 months. It seems that he discounted this by 3 months for the plea of guilty, representing a discount 'somewhere in the range' of 15% of the maximum term.

28 I must keep in mind that the term was backdated to commence on 13 January 2009 with the result that the appellant received an allowance for time spent in custody, being a matter that might otherwise have been given considerable weight as a mitigatory factor. The appellant will be eligible for parole after serving one-half of the term; that is, after serving 7½ months from 9 January 2009.

29 By an appeal notice dated 10 March 2009 the appellant challenged the sentence imposed of 15 months' imprisonment with parole eligibility. The ground of appeal was that the sentence imposed was manifestly excessive given the circumstances of the offence and the antecedents of the appellant.

30 By an order dated 20 March 2009, McKechnie J extended time for making the application and granted leave to appeal in respect of the ground specified in the appeal notice.

31 It will now be useful to look at certain statutory provisions and legal principles bearing upon the issues raised by the ground of appeal.

32 Section 7 of the Criminal Appeals Act 2004 (WA) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. By s 8 an appeal may be made on various grounds including that the court below made an error of law or fact or imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice. An appeal may be made even if the decision was made after a plea of guilty or an admission of the truth of any matter.

33 By s 9 of the Criminal Appeals Act leave to appeal is required in all cases. By s 14 the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if a court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal not withstanding that a ground of appeal has been decided in favour of the appellant. The usual practice is for the court to determine the appeal on the material before the court of first instance.

34 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226.

35 As to an appeal against sentence, it is permissible for the Supreme Court to substitute an alternative sentence.

36 It is well recognised that an appellate court may not substitute its own opinion for that of the sentencing judicial officer below merely because the appellate court would have exercised its discretion in a different manner. It must be shown by the applicant that the court at first instance failed to properly exercise its discretion by acting upon a wrong principle, mistaking the facts, or allowing irrelevant matters to affect the decision: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671.

37 This approach is reflected also in an earlier decision of the High Court concerning the exercise of discretionary powers, namely, House v The King (1936) 55 CLR 499; [1936] HCA 40. However, importantly for present purposes, it will be useful to keep in mind the observations made by Gauldron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 as follows:

Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

38 By s 6 of the Sentencing Act 1995 (WA) a sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty for the offence, the circumstances of the matter, any aggravating factors and any mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.

39 I pause to note that as a consequence of amendments to the Sentencing Act that took effect on 14 January 2009 courts are no longer required under the previous, so-called truth in sentencing provisions to discount proposed terms by one-third. They can now have regard not only to the maximum statutory penalty and the sentences passed under the previous regime but also to the minimum custodial period of any fixed term under consideration.

40 The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made. This means that a discount of up to one-third will usually be allowed for a plea of guilty on the fast-track system in this State and other allowances for a plea of guilty are to be made depending on the circumstances of the case: Radebe v The Queen (2001) 162 FLR 313; [2001] WASCA 254 per McKechnie J at [18].

41 However, it must be kept in mind that the High Court has now approved the instinctive synthesis approach to sentencing with the result that a staged approach to sentencing and attempts to specify the extent of the discount which has been given for a plea of guilty must be addressed with care: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Chivers v The State of Western Australia [2005] WASCA 97.

42 As to parity, where other things are equal persons involved in the course of offending should receive the same punishment, but if things are not equal discrimination should be made between the offenders, especially where there is a lower level of culpability in comparison to the culpability of the other offender. Whether the existence of a disparity in sentence calls for intervention lies within the discretion of the appeal court which is exercised when the disparity is such as to give rise to a justifiable sense of grievance: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

43 Antecedent criminal history cannot be brought to account as an aggravating factor, but it can be relevant to show whether the instant offence reflects a continuing attitude of disobedience of the law: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465; 33 A Crim R 230. This rule bears upon the parity issue.

44 By s 76 of the Sentencing Act a court that imposes a term of 60 months or less may order that the term be suspended for a period set by the court but not more than 24 months. Suspension is not to be imposed unless imprisonment for a term equal to that suspended would be appropriate in all the circumstances. It emerges from the ruling of the High Court in Dinsdale v The Queen [2000] HCA 54 that the same considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.

45 The appellate courts have indicated that even in regard to serious offences requiring general and personal deterrence the mitigatory circumstances may be of such a power that the principles of sentencing would be adequately served if the term was suspended: Deville v Western Australia [2004] WASCA 264; Lovatt v Western Australia [2004] WASCA 265.

46 Let me now return to the circumstances of the present case.

47 Counsel for the appellant submitted that in the present case the appellant had punched the victim once, knocking him to the ground. Thereafter the victim was assaulted by others.

48 It was said that whilst the appellant had a history of prior offending, he had no prior convictions for violent offences. He was in regular employment and was making payments of child support and paying off fines. The court was advised that he was willing to testify against another offender who had allegedly kicked the victim, being a matter put to the learned magistrate at the sentencing hearing.

49 Counsel submitted that his Honour erred in giving only a 15% discount from the maximum available term in reducing that maximum from 18 to 15 months. That was said to be for the early plea of guilty. This suggests that no credit was given to the appellant for his lack of prior convictions for violence, his good employment history, his willingness to give evidence against other participants in the altercation, or the assistance he provided to the victim following sustained assault by others. Further, there was no evidence that the appellant was a danger to the community.

50 It was said, having regard to these considerations, that his Honour erred in finding that a sentence of immediate imprisonment was the only available sentence. Alternatively, in the circumstances, the sentence of 15 months' imprisonment was manifestly excessive.

51 It was said further that a co-offender Ms Ellyce Tara Spark was also charged with assaulting the victim in this matter. She pleaded not guilty and proceeded to trial on 11 December 2008 and 12 January 2009. She was convicted of the offence and was sentenced to 10 months' imprisonment on 23 January 2009. At the time the finding of guilt breached the conditions of a suspended imprisonment term. Moreover, Ms Spark was found guilty of kicking the victim in the head whilst he was on the ground.

52 Counsel for the appellant submitted that the disparity of 5 months' imprisonment between co-offenders offended the parity principle and could justifiably give rise to a sense of grievance on the part of the appellant bearing in mind that he had pleaded guilty and his behaviour in punching the victim once was arguably less severe then the actions of his co-offender. Further, he assisted the victim after the latter was subsequently assaulted by the co-offender and another person not charged.

53 It was against this background that by an application dated 30 April 2009 the appellant sought leave to add an additional or second ground of appeal as follows:

The learned sentencing Magistrate erred in imposing a sentence of 15 months imprisonment in that such term lacked parity with the sentence imposed on a co-offender.

54 Counsel for the respondent had come prepared to deal with this ground. In the absence of any prejudice, I was of the view that the amendment should be allowed and leave granted so that all issues could be fully ventilated.

55 As to the first ground of appeal, counsel for the respondent made these submissions:

1. The Respondent accepts that this offence was not the most serious of its type, and therefore that a sentence of 18 months reduced by 15% for a guilty plea to 15 months may be excessive.
2. However, the offence was nonetheless a serious offence justifying immediate imprisonment, for the following reasons:

(a) the Appellant's assault was unprovoked;

(b) the Appellant was in company with two other people when he assaulted the victim;

(c) the Appellant's punch led to the victim lying motionless on the ground, whereupon the Appellant's associates, including Ms Spark, further assaulted him.

1. Further, immediate imprisonment was also justified by reference to the personal circumstances of the Appellant, in that the Appellant had a demonstrated history of not paying fines, and by the need to deter others from committing similar offences in similar circumstances.

56 As to the second ground of appeal concerning parity, counsel for the respondent made these submissions:

1. Ms Spark was found guilty of kicking the victim in the head when he was lying on the ground, following the 'king hit' by the Appellant.
2. The Respondent accepts that the disparity of 5 months imprisonment between the co-offenders may lead to a justifiable sense of grievance on the part of the Appellant, given, in particular, that he pleaded guilty to the assault charge against him.
3. However, for the reasons outlined at paragraphs 12, 15 and 16 above, the Appellant's offence was nonetheless a serious offence justifying immediate imprisonment.
4. The Appellant's offending was at least as serious as that of Ms Spark, as his assault on the victim made possible the further assault by the Appellant's associates. Further, the Appellant's assault led to the victim falling to the ground, where he lay unconscious and motionless while being assaulted by Ms Spark (ts 2 Feb 2009, 6).

57 It will be convenient to deal initially with what is now the second ground of appeal concerning parity. As to this ground, I have to say that I see force in the latter part of the respondent's submissions.

58 The magistrate gave careful consideration to the various sentencing options. However, in my view, he was entitled to treat the subject events as a serious offence justifying immediate imprisonment, notwithstanding that imprisonment is always a sentence of last resort. In this case the appellant initiated the assault by acting aggressively at the outset and he persisted in that course of conduct outside the tavern. He struck the first blow and in circumstances where, being in company, he had the advantage not only of surprise but of assistance, if required.

59 The magistrate had tried the case against Ms Spark and was conversant with all the circumstances. To my mind, he was entitled to distinguish between the culpability of the appellant in initiating an assault that left the respondent defenceless and the culpability of Ms Spark in acting on the encouragement to further action provided by the appellant. It is true that, unlike Ms Spark, the appellant pleaded guilty, but it must not be forgotten that he received a discount for the plea. Moreover, the personal circumstances were different in that she was also being re-sentenced for other offences. I am not persuaded that the appeal should be allowed on this ground.

Conclusion as to the first ground of appeal

60 As to the first ground of appeal, I am of the view, notwithstanding that there was only a single blow, that the magistrate was justified in characterising this as a serious offence because the blow was the final stage of a persistent course of aggressive conduct. The other sentencing options, including suspension of any term were carefully considered, but quite properly thought to be insufficient in meeting the need for deterrence in respect of a form of assault that has sometimes had fatal consequences. In my view, the option of suspension is outweighed by the seriousness of the offence and the need for personal and general deterrence.

61 However, I must now turn to the nature of the custodial term. It follows from what I have said that, in my view, his Honour did not err in placing the offence in the serious category and, in doing so, giving consideration to the maximum penalty of imprisonment of 18 months as a starting point (as a sentencing officer is now permitted to do under the 2009 legislation). The magistrate, who was familiar with the evidence, took the view that, having left the tavern, the appellant could have simply walked away but in fact he took advantage of an opportunity to renew the confrontation, and struck the first blow, and in a manner that may well have encouraged the assault by Ms Spark that then followed.

62 To my mind, the magistrate did not err in allowing a discount of 15% only for the guilty plea, for the plea came late and the telephone intercepts and related conduct displayed a lack of remorse. However, it does appear that his Honour failed, in essence, to make allowance for other mitigatory factors, including especially the absence of any prior conviction for violent offences and, importantly, that the appellant had been in regular employment and those referred to in the pre-sentence report spoke well of him. I am of the view that the failure to give proper weight to considerations of this kind meant that the sentence can be characterised as manifestly excessive and there was an error in the exercise of the sentencing discretion.

63 In my view, it follows from the reasoning I have set out in earlier discussion that after bringing to account the various mitigatory factors the appropriate disposition in respect of a serious offence of common assault of this kind was a term of imprisonment of 12 months backdated to commence on 13 January 2009, to be served immediately, and with eligibility for parole.

64 I therefore propose to allow the appeal on the first ground and make orders for re-sentencing the appellant as above accordingly.