CLARKE -v- CANTATORE [2019] WASC 385 (28 October 2019)

The sentence on [relevant charge number and description] was in all the circumstances manifestly excessive particularly having regard to the place that the offending occupies on the scale of seriousness and the personal circumstances of the appellant.

1. Ground 3 alleges a breach of the totality principle and ground 4 alleges that the magistrate erred in concluding that the total term of imprisonment imposed on the appellant could not be suspended, partially or fully and in concluding that the only appropriate sentencing option was a term of immediate imprisonment.

1. The appellant was charged that on 23 March 2019 at Beeliar he:

(a) unlawfully, and with intent to injure or annoy a person, caused a noxious substance thing to be administered to the complainant in a circumstance of aggravation contrary to the Criminal Code (WA) s 301(2) (the aggravated noxious substance offence); and

(b) unlawfully assaulted the complainant in circumstances of aggravation, namely being in a family and domestic relationship contrary to the Criminal Code s 313(1)(a) (the aggravated assault offence).

Any person who -

(2) Unlawfully, and with intent to injure or annoy any person, causes any ... other noxious thing to be administered to ... any person;

is guilty of a crime, and is liable -

(a) if the offence is committed in circumstances of aggravation, to imprisonment for 7 years;

Summary conviction penalty:

(a) in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000;

1. The Criminal Code s 313(1)(a) relevantly states:

(1) 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 ..., to imprisonment for 3 years and a fine of $36 000;

1. In respect of both charges 'circumstances of aggravation' are defined to include that the offender was in family relationship with the victim of the offence. It was never in dispute that the appellant and the complainant were in a family relationship at the time of the commission of the offences.
2. The appellant was arrested and appeared in court on 24 March 2019 when he was granted bail with protective bail conditions. At a later appearance he pleaded not guilty to the charges. His trial took place on 12 August 2019 and the magistrate delivered his decision 20 August 2019. The appellant was sentenced on the same date.

1. The magistrate was satisfied beyond reasonable doubt that the complainant's evidence was truthful. He rejected the appellant's evidence of what had occurred. Consequently the facts found by the magistrate are that:

There are some common facts in this matter and they are simply this. The accused and the complainant had, at the time of the allegations, been in a relationship for approximately five years. That they were engaged to be married. They had resided together in a rental property at ..., Beeliar. The accused was the owner and sole trader in a franchise carpet cleaning and titling and grout business. The accused's father assisted in all of his accounting and bookkeeping requirements.

The complainant also assisted from time to time in these duties. She was not a paid employee. The complainant worked separately as a child care administrator. The complainant gave evidence that on the day in question, the accused had been asleep in the couch in the lounge room for a few hours. While she was in the kitchen, he woke up. The complainant says that when he woke, he asked her if she was going to make an appointment to attend a finance broker, to which she said no.

...

Ultimately, the complainant says that her response caused the accused to become agitated and he went into a rage. He walked into the main bedroom and began yelling and throwing all of her clothes out of the cupboard and into the hallway. He was yelling, 'I will get you out of this fucking house myself'.

She said his shouting and abuse was directed towards her, even though she was not in the same room. The complainant said she went into the bedroom and asked the accused what he was doing. As she entered, he approached her with his right hand raised and threw her onto the bed and held her down. He was foaming at the mouth. The complainant used her legs to get the accused off her. The accused then continued to throw items around the room and he then again turned to her and was ranting.

The complainant said she grabbed the pepper spray from the bedside table located next to the accused's side of the bed. She knew where it was located but was not sure about its operation. ... She depressed the handle or button for approximately two seconds. She was about two metres away from the accused at this point. A projectile stream of spray emanated as a result. A small amount grazed the accused's face.

...

The complainant says that after she deployed the pepper spray, the accused began to swear at her, 'You fucking whore, you fucking bitch, I'm going to kill you'. She says that the projectile squirt of pepper spray hardly touched the accused. ...She knew it would cause him pain but that was not what she was thinking about as she was acting in self-defence.

...

The complainant said that the accused then went to the ensuite bedroom and got a towel, while the complainant herself went to the kitchen to get a bottle of water from the fridge.

...

The complainant says that the accused recovered from the initial spray in the bedroom and approached her, picked her up by her neck and jaw and threw her back a couple of metres into the fridge. She says that whilst she was at the fridge, the accused then put his hand on the left side of her head and pounded her right side against the fridge with a great deal of force.

She instantly felt nauseated, pain and saw stars. She had tears in her eyes. She collapsed and fell down to the floor. It took her about 30 seconds to regain her composure. The complainant said her adrenaline kicked in and she stood up, leaning on the fridge. At that point she felt a hot burning sensation at the back of her neck which then came around to the side of her face. ... She knew immediately that it was the pepper spray.

The accused was behind her and said, 'See how you fucking like it'. The accused came to the front of her with the spray in his hands and she turned her head to the other side, away from him. She estimated that she was sprayed for 30 to 60 seconds with the pepper spray. The spray was in her hair, ears and mouth. She felt like she was on fire and felt sick. She grabbed a tea towel and went to the bathroom. Consistent with exhibit 4, the complainant says she locked herself in the bathroom and stood under a cold water shower, fully clothed, for about 10 minutes.

...

While she was in the shower, the accused was banging on the locked door, saying, 'Fucking whore, get out of this house'.... She came out of the ensuite and entered the bedroom. As she did so, the accused also entered. At this point she went to reach for her phone which was in the middle of the bed, but the accused grabbed it first and threw it at her.

...

The complainant picked up her smashed phone from the floor and her bag from the bed. She walked into the kitchen and collected her keys and walked to her car. She found that the accused was then standing in front of her and blocking her access to the motor vehicle. She told how much that she did not feel safe and that she would go to the next door neighbours and call the police. Now, the accused then stood to one side and she drove to her brother's place ...

...

The complainant did not call police immediately. She sat with her brother and spoke about what had happened. Her brother calmed her down whilst they had a cup of tea, and then the police were called. She gave a statement to police at 1.05 am on 24 March. On 26 March, the complainant saw her GP. She was still experiencing discomfort and pain. It is noted the doctor's report is exhibit 1. The complainant described that as a result of the assault upon her, where she experienced soreness to the side of her head that had made contact with the fridge, and that soreness lasted for approximately three weeks.

She could not open her jaw or eat properly. Her neck and muscles were sore. She had to take three days off work.[1]

1. Relevant to the appellant's intent when he used the pepper spray, the magistrate found that the appellant was aware that the pepper spray was likely to cause injury or at least annoy another person. His Honour noted that the appellant had admitted that he had purchased the spray for the purpose of self defence against intruders. The appellant had further admitted that it was his understanding that the pepper spray was stronger than that usually used by the police. As a result he knew that it could cause immense pain. The magistrate found that the appellant applied the pepper spray to the complainant's neck and face for a period of 30 ‑ 60 seconds at close range.[2]

1. After the magistrate found the offences proved, the prosecutor produced the appellant's prior criminal record. It includes two convictions for breach of a violence restraining order (VRO), two convictions for breach of protective bail conditions, one conviction for breaching a police order and two convictions for possession of weapons.
2. Two breach of protective bail conditions offences and one breach of a VRO offence relate to the breakdown of the appellant's relationship with the complainant and occurred after the commission of the offences the subject of this appeal and whilst the appellant was on bail for them. The offences involved sending repeated text messages and making repeated phone calls to the complainant in breach of a VRO which was made after the appellant was charged with the offences the subject of the appeal. They did not include threats to harm the complainant but they did include some threats to self-harm.
3. One of the breach of protective bail conditions offences occurred two days after the offences the subject of the appeal. The appellant pleaded guilty to that charge a further three days later. In the course of his plea in mitigation the appellant's counsel told the court that the appellant was remorseful and that he (the appellant) had told him that he fully understood that he needs to stay away from the complainant and not contact her.[3]
4. Despite these submissions a month later the appellant committed the second breach of protective bail conditions offence and a breach of the VRO (constituted by essentially the same facts).
5. Two other breach offences occurred in 2007 and 2009 respectively in the context of the breakdown of earlier relationships.
6. The appellant has a smattering of other convictions. He had received modest fines for all other offences.
7. It was to the appellant's credit that since 2013 he had not been convicted of any offence, other than the offences committed after the offences the subject of the appeal. Further he had no prior convictions involving actual violence.
8. Next, the prosecutor made sentencing submissions which the appellant interrupted. The appellant accused the prosecutor of insulting him by his comments. Objectively, the prosecutor's submissions were appropriate to the circumstances.
9. The prosecutor asked the magistrate to give consideration to a sentence of imprisonment.
10. The magistrate told the appellant's counsel that he believed that only a term of imprisonment was appropriate for the appellant's offences.
11. Again the appellant interrupted and said 'you're joking' and 'I'm the victim'. He also said:

No wonder men take things into their own hands when the courts don't look after men and just favour women.[4]

1. These comments were proof that the appellant was not remorseful and was not showing any victim empathy.
2. The appellant's counsel then continued with the plea in mitigation. He relied upon a report from Dr Febbo, who is the appellant's treating psychiatrist. The report states that the appellant has seen Dr Febbo intermittently since September 2014. The appellant has mental health issues including a depressive/anxiety syndrome for which he was then being treated with an antidepressant. In addition the appellant has a long history of attention deficit hyperactivity disorder (ADHD) for which he is treated with dexamphetamine.
3. The plea in mitigation contained the following submissions:

(1) The offences occurred in the context of the breakdown of the relationship between the appellant and the complainant. The complainant had not communicated to the appellant that she wished to end the relationship.

(2) The incident escalated after the complainant sprayed the appellant with the pepper spray. This was a 'highly provocative act' to which the appellant reacted.

(3) The appellant works hard in his carpet and tile cleaning business which has had for three years.

(4) His work is physically demanding and he works long days and does his books in the evening.

(5) At the time of the offences he was run down and suffering from a cold for which he was taking medication.

(6) The appellant believes that it was a combination of his cold and flu medication and his prescribed medication which caused him to react to the complainant's actions and words. This belief was supported by a fact sheet which had been tendered in evidence during the trial.

(7) The appellant has no previous convictions for assault.[5]

1. The magistrate and counsel then referred to the victim impact statement (VIS). The appellant's counsel noted that there were some comments made by the complainant which went beyond the scope of what was permissible in a VIS. It was left to the magistrate to ignore those comments, as I have too.
2. The VIS confirms that the offences had both a physical and emotional effect on the complainant. At the time the complainant wrote the statement she was living on the floor of a relative's home because that was the only place where she felt safe. She said that she had often relived the offences in her mind and believed that her life had been in danger. She continued to have that fear. She said that the offences had impacted on her working life, her health and her self‑confidence.
3. The complainant said that she could still feel the spot on the side of her head where she was hit. As a result of the offences she was on constant guard.
4. The appellant's counsel further noted that the complainant had not sought further medical treatment after an initial visit to the doctor following the offences.
5. Counsel requested that the magistrate impose a significant fine. The magistrate reiterated that he was intending to impose a sentence of imprisonment and that fines were not appropriate for the offending given the application of a very significant amount of pepper spray to an individual 'with intention'.[6]
6. Next, the appellant's counsel then requested that any sentence of imprisonment be suspended and structured so that the appellant could get counselling. However counsel acknowledged that the appellant had instructed him that due to his work commitments it would be difficult for him to find time for counselling.[7]
7. During the latter part of the submissions the appellant interrupted on a few occasions. He was angry and distressed.
8. The magistrate made the following points in his sentencing remarks:

(2) Both offences were serious examples of offences of their type.

(3) There was no mitigation by way of pleas of guilty.

(4) The appellant had endured the trauma of having to give evidence and to be cross‑examined at length about the offences.

(5) The VIS provided insight into the effect of the offences on the complainant.

(6) There was very little mitigation in the fact that the complainant had deployed a very short burst of pepper spray in the bedroom as she did that in self‑defence.

(7) The facts of both offences were towards the upper end of seriousness.

(8) There was 'perhaps some mitigation' in the appellant's mental health issues. It was not entirely clear exactly how or what impact those issues had directly on the appellant's behaviour although the magistrate's findings had included comment about the possibility that the appellant's personality type had led to his behaviour after he was challenged.[8]

1. The magistrate concluded that the only appropriate sentence was one of imprisonment. He then considered whether the sentence should be suspended whether conditionally, partially or fully.
2. The magistrate noted that the appellant had a very limited record but it included the breaches of restraining orders, police orders and protective bail conditions. His Honour noted that the earlier breaches of orders were relevant to the sentencing process.[9]
3. The parties consented to me taking into account the statements of material facts for the earlier offences. In 2007 the appellant was convicted of breaching a VRO. The facts of that offence were that the complainant (not the complainant in the offences relevant to the appeal) obtained a VRO against the appellant which prevented him from communicating or attempting to communicate with the complainant in that case. Whilst the VRO was in place, the appellant approached the complainant at a nightclub and told her that he was there to take her home. The complainant refused his offer and the appellant left the club. Shortly after this the complainant started receiving text messages from the appellant. She received in excess of 20 text messages. The following day the appellant attended the complainant's home. The appellant asked if he could enter the house but he was refused permission and he left. The complainant was not home at the time. She arrived home about 30 minutes later and saw the appellant sitting in a car parked about 20 m away from her house. The appellant beckoned the complainant to approach him but she walked straight into the house. The appellant then started yelling abuse at her and accused her of sleeping with another person.
4. In 2010 the appellant was convicted of breaching a police order. The facts were that on 28 December 2009 the appellant was issued with a 24 hour police order. One of the conditions of the police order was that he was not to attempt to communicate by whatever means with the person protected. Late in the evening on 28 December 2009, the appellant breached the order by sending six text messages to the protected person (not the victim of the offences relevant to the appeal). Further the appellant was seen leaving the vicinity of the protected person's address the same evening. It was ascertained that the appellant had consumed alcohol. As a consequence, he was breath tested and this resulted in a further offence of exceeding the 0.05 g/100 ml alcohol driving limit.
5. The magistrate noted that these offences indicated a pattern of behaviour of inability to comply with court orders.
6. The magistrate also noted that the appellant had never been on any form of intervention, such as an intensive supervision order, in the past. Nevertheless in order to achieve specific and general deterrence, the magistrate concluded that these offences warranted an immediate term of imprisonment. His Honour said:

That's the only disposition that the court can impose which would reflect the gravity of the assault and the administering, particularly, of the pepper spray.[10]

1. His Honour imposed 9 months' imprisonment for the offence of administering the pepper spray and 3 months' imprisonment for the aggravated assault. His Honour ordered that the 3 month sentence be served cumulatively on the 9 month term of imprisonment, which made a total sentence of 12 months' imprisonment. He did not give reasons for ordering cumulacy but he had previously stated that they were 'separate and distinct offences'.[11] He ordered parole eligibility.
2. Immediately after the magistrate imposed the order, the appellant responded verbally and then he resisted being taken to the cells. The transcript indicates that there was a physical altercation between the appellant and court guards. After further guards arrived in the court and restrained the appellant he was removed from the court. As he was being removed from the court the appellant repeatedly asked to speak to the complainant about her dog, which he had been looking after.

1. Both parties agree that the grounds of appeal are to be considered in light of the following principles which were recently restated in HA v The State of Western Australia:[12]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(4) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(5) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

(7) The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.

1. I will now determine whether the sentences for each offence were manifestly excessive (grounds 1 and 2).

Ground 1 - sentence for the offence of aggravated noxious substance

1. The maximum sentence for the offence is 7 years' imprisonment. The maximum sentence available for the offence when dealt with in the magistrates court is imprisonment for 3 years and a fine of $36,000.
2. Neither party was able to find any appellate decisions relating to sentencing for this offence.
3. The appellant's contention that an offence of this nature was more likely to be charged as a common assault was not accepted by the respondent. It matters little in this context. The position is that there are no cases which identify the standards of sentencing for an offence against the Criminal Code s 301(2)(a) or any offence constituted by the administering of capsicum spray with intent to injure or annoy.
4. The parties disagree about the seriousness of the offence. However, the appellant concedes that the offence was aggravated because at the time the offence was committed the complainant was recovering from the aggravated common assault just committed by the appellant. He further concedes that it was aggravated by the fact that it occurred over a protracted period of 30 ‑ 60 seconds.
5. The respondent submits that the offence was aggravated by the following factors:

(1) It occurred in the context of a domestic relationship.

(2) The appellant was aware that the pepper spray was likely to cause immense pain, injury or at the very least, annoy another person.

(3) The appellant applied the pepper spray at close range to the complainant for an extended period of time.

(4) The appellant administrated the pepper spray whilst the complainant was dazed and nauseated from that prior assault such that she was vulnerable and unable to defend herself.

1. I agree with the respondent's contentions.
2. The respondent does not accept that the complainant's previous behaviour in administering pepper spray to the appellant was provocative and mitigating.
3. The correctness of the appellant's submission in this respect has to be assessed in light of the magistrate's rejection of the same submission because, as he said, the complainant had administered the pepper spray only briefly in the direction of the appellant in order to defend herself.
4. Further, any provocation in fact for the complainant's behaviour had well and truly ended by the time this offence occurred. It could be accepted that someone who was sprayed with pepper spray would lash out and push the hand or arm of the person holding the pepper spray or the person themselves away from them. That is not what occurred here. This offence occurred well after the complainant had sprayed the appellant, after the complainant had put the spray down and after the appellant committed the aggravated common assault offence. He had ample time to compose himself and regain any control of his emotions. It is quite clear from the magistrate's findings that the appellant acted out of anger and revenge when he committed this offence. There is little or no mitigation in those circumstances.
5. I accept when judging the seriousness of the offence that it is relevant to take into account that the administering of the pepper spray did not cause bodily injury to the complainant. However, it did cause immediate unpleasant physical sensations which required the complainant to shower for a long period of time. It also caused her to be nauseated and dizzy.
6. The appellant submits that the offence of administering a poison or other noxious thing with intent to harm encompasses a very wide range of circumstances including drink spiking with intent to harm or disable a person for the purpose of committing more serious offences or causing a person to take a poison with intention to seriously harm them. He submits that in light of the range of conduct included in the offence, he could not be said that this was a serious example of the offence.
7. I hesitate to find that it is an offence at the upper end of the range of seriousness of offences of this type because the offence does cover such a wide range factual circumstances. However, I have no hesitation in finding that given the circumstances of aggravation it is serious example of an offence of this type and would fall no lower than the mid-point of the range of offences of this type.
8. Further, the appellant says that his personal circumstances were mitigating. He particularly relies upon his good work record, his lack of previous convictions for violence offences and his mental health issues.
9. I accept, as the magistrate did, the mitigating effect of these personal circumstances.
10. Taking into account all of these matters, I concluded that a sentence of 9 months' imprisonment for the aggravated noxious substance offence was not manifestly excessive, although it is at the upper end of the range of sentences that could be imposed for this offence, taking into account the circumstances in which it was committed and the appellant's circumstances.

Ground 2 - sentence for aggravated assault was manifestly excessive

1. The maximum sentence for the offence is 3 years' imprisonment and a fine of $36,000.
2. The standards of sentencing for aggravated assault have been considered in a number of cases.[13] However those cases have not established a tariff or a range of appropriate sentences for the offence. In Bropho v Hall Mitchell J (as he then was) said that 'a sentence of 15 months' imprisonment would stand at the upper range of sentences ordinarily imposed for this offence'.[14] I would not dispute that based on my review of relevant cases. However what is also clear is that fines and community based orders of various kinds are appropriately imposed for offences at the lower end of the range of seriousness.
3. That leads me to a consideration of the seriousness of this offence. The Appellant concedes that the offence was aggravated by a number of circumstances the most important of which were the domestic relationship between the parties and the repeated significant force applied by the appellant to the complainant's head and neck.
4. The appellant's personal circumstances also had to be taken into account. The appellant received credit for a good work history but he received no credit for a plea of guilty, remorse, victim empathy or prior good character.
5. General and personal deterrence were important sentencing factors. Personal deterrence was particularly relevant because of the appellant's history of committing offences during the breakdown of domestic relationships and his history of breaching court orders designed to prevent these types of offences from occurring. This is not to say that the appellant was to be additionally punished for his prior criminal history or for the failure of earlier penalties to achieve their aims. It is simply that the previous convictions demonstrate that offending during the course of a relationship breakdown was not an aberration by a person who is otherwise of good character.
6. General deterrence has been acknowledged by the courts to be of particular relevance to the sentencing of offenders for offences of violence committed against domestic partners, whether that be during the breakdown of a relationship, as in this case, or at any time. It is notorious that there are far too many such offences committed in our community. A person has a right to end a relationship without the threat of, or actual violence. The end of a relationship is a very stressful period. No one has a licence to manifest that stress into an assault on their partner or to punish a partner by inflicting violence on them. The courts must do what they can to communicate these principles to would be offenders by imposing strong penalties on those who breach them. This is in the hope that they will be deterred from committing such offences.
7. The offence committed by the appellant was not at the upper end of the range of seriousness of offences of this type but if it were it would have required a sentence much greater than 3 months' imprisonment.
8. Taking into account all relevant matters and the personal circumstances of the appellant which I have identified in [58], I concluded that a sentence of 3 months' imprisonment for the aggravated assault offence was not manifestly excessive and that it was well within the range of appropriate sentences for an offence of its seriousness.

1. The first limb of the totality principle is in issue in this case. The second limb requiring that a sentence not be crushing, is irrelevant.
2. The first limb of the totality principle requires a judgment as to whether the total effective sentence of 12 months' imprisonment bore a proper relationship to the overall criminality involved in both offences, viewed in their entirety, having regard to all relevant facts and circumstances including those personal to the appellant, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
3. In making that judgment, I take into account that the relatively heavy sentence for the aggravated noxious substance offence may have been softened by an order that it be served concurrently with the sentence for the aggravated assault but that did not occur.
4. I take into account that I should not interfere with the magistrate's order for cumulacy simply because I would not have made that order if I had been sentencing the appellant at first instance. The real question is whether the total effective sentence is unreasonable or plainly unjust.
5. After taking into account these principles, a total effective sentence of 12 months' imprisonment was plainly unjust having regard to the following factors favouring an order that the sentences be served concurrently with one another:

(1) The offences, although separate, occurred within a short period of time and in the one incident.

(2) The appellant has some prospects of rehabilitation given his good work ethic, his history of running his own business and his community ties.

(3) The appellant had never before been sentenced to a term of imprisonment.

(4) The appellant does not have a propensity for actual violence, given that these were his first offences of actual violence.

1. Thus it was appropriate to set aside the order for cumulacy and to order instead the sentences be served concurrently with one another. This resulted in a total effective sentence of 9 months' imprisonment.

Ground 4 - suspension of the term of imprisonment

1. A court cannot order that a sentence of imprisonment be served immediately unless satisfied that it is not appropriate to order that it be suspended (partially, conditionally or not). When deciding this issue the sentencing considerations which are relevant to determining whether a sentence of imprisonment ought to be imposed must be revisited.[15]
2. The appellant does not allege that the magistrate failed to consider whether to suspend the sentences. Rather the allegation is that there is an implied error in his failure to order suspension.
3. I take into account that I should not interfere with the magistrate's order that the sentences be served immediately simply because I would not have made that order if I had been sentencing the appellant at first instance. Whether an order for suspension is appropriate involves the exercise of a discretionary judgment. In borderline cases different types of sentences may reasonably open.[16]
4. Also a magistrate who has presided over a trial where the appellant has given evidence has had the advantage over the appellate court of hearing, seeing and observing the appellant. The magistrate's assessment of the appellant's prospects of rehabilitations, his or her remorse, the extent of his or her empathy for the victim and like matters should not be interfered with lightly by an appellate court.
5. In support of this ground of appeal the appellant points to matters in his favour such as I have outlined in [58] and [73]. Clearly these were not the only factors to be weighed in deciding whether to suspend any period of imprisonment. The seriousness of the offences, the persistence evidenced in their commission the need for generally and personally deterrent sentences and the appellant's history of breaching orders were also relevant considerations.
6. As the appellant concedes, he did not have important matters such as youth, a plea of guilty or genuine remorse in his favour. Moreover his behaviour during the proceedings indicated that he remained angry and resentful and blamed the complainant for his convictions. The appellant showed no signs of having any insight into the seriousness of his offending or the need to change his behaviour to prevent a repetition of it in the future. The appellant's behaviour after he was sentenced confirmed that the appellant had made little progress towards rehabilitation.
7. In these circumstances I concluded that the magistrate did not err in deciding that it was not appropriate to suspend the indicative terms of imprisonment.

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

[12] HA v The State of Western Australia [2019] WASCA 69 [28].

[13] For example, Li v Skala [2018] WASC 353 [91] - [98]; Williams v Pennuto [2016] WASC 325 [42] - [48], Leighton v Nelson [2016] WASC 354, Bropho v Hall [2015] WASC 50 [25] - [35].

[15] Skipworth v The Sate of Western Australia [2008] WASCA 64 [8], McLure P.

[16] Fogg v The State of Western Australia [2011] WASCA 11 [8] - [10], McLure P.