Criminal law - Appeal against sentence - Assault occasioning bodily harm, and grievous bodily harm - Concurrent terms of 6 months' and 16 months' immediate imprisonment - Whether first term manifestly excessive - Whether offences so serious that immediate imprisonment the only appropriate option - Turns on own facts

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

Chan (1989) 38 A Crim R 337

Collins v The State of Western Australia [2007] WASCA 108

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

Kilner v The Queen [1999] WASCA 189

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

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

Skipworth v The State of Western Australia [2008] WASCA 64

The State of Western Australia v Camilleri [2008] WASCA 217

The State of Western Australia v Collier [2007] WASCA 250

Thompson v The Queen [2005] WASCA 223

1 McLURE P: I joined in the orders made by the court on 21 April 2010 for the reasons given by Blaxell J.

3 BLAXELL J: On 26 October 2009 the appellant was sentenced in the District Court to concurrent terms of 6 months' and 16 months' immediate imprisonment for offences of assault occasioning bodily harm, and grievous bodily harm. On 21 April 2010 this court allowed the appellant's appeal against those sentences and substituted an intensive supervision order in respect of the first offence, and 10 months' imprisonment suspended for 10 months in respect of the second offence. These are my reasons for joining in that decision to allow the appeal.

4 During the first half of 2008, the appellant was 24 years of age, living with a partner in Dianella, and working as a bakery assistant in two supermarkets. This work required him to attend the two supermarkets during the early hours of six mornings per week to restock shelves with bakery items.

5 The appellant travelled to and from work by bicycle, and was sometimes accompanied by his partner who would assist him with his duties. His route between the two supermarkets took him through a park in Dianella and often at about 6 am when it was still dark. The complainant, who was a 56-year-old woman, habitually used the park at about that time while walking her two dogs.

6 Consequently the appellant and the complainant (Ms Rogers) frequently encountered each other, and during the weeks leading up to the offences, there were a number of confrontations or arguments between them. In this regard, Ms Rogers objected to the appellant riding without a helmet on a bicycle which did not have lights. The appellant objected to Ms Rogers walking her dogs without them being on leads.

7 The first offence of assault occasioning bodily harm occurred on 22 July 2008. The appellant was riding through the park with his partner when they came upon Ms Rogers. Ms Rogers said something to the effect of 'It's you', and there was then an argument and physical confrontation in which the appellant's partner also became involved. The appellant was later sentenced on the basis that he had assaulted Ms Rogers by spitting in her hair, and 'riding' (viz. pushing) the front tyre of his bicycle into her left

leg. As a result of being struck by the bicycle, Ms Rogers suffered bruising to her shin.

8 I understand the sentencing judge to have found that there was at least one further confrontation between the appellant and Ms Rogers prior to the second offence. The appellant's version of this incident (in his video record of interview) was that one morning Ms Rogers lay in wait for him in the park while in the company of a young man whom he believed to be her son. According to the appellant he was threatened and chased by the young man but was able to evade him by riding away on his bicycle. The significance of this incident is that the appellant then started carrying a fishing knife (with a 20 cm blade) in the backpack that he always had with him. For a period he also avoided the park and took a more circuitous route between the two supermarkets.

9 The appellant committed the second and more serious offence on 5 September 2008. At about 7 am that day, Ms Rogers was driving home from the park when she saw the appellant on his bicycle near the Dianella Shopping Plaza. Ms Rogers then started to follow the appellant in her car so that she could take a photograph of him with her mobile phone. The appellant assumed at first that Ms Rogers was on the way to walk her dogs, but when he realised that he was being followed, he did his best to lose her by speeding up on his bicycle and crossing the park where the car could not go. He then made a series of turns into various streets and ended up in a private driveway in Crystal Brook Street, Dianella where he tried to hide from Ms Rogers.

10 Regrettably (in light of what subsequently transpired) these efforts were to no avail, and Ms Rogers was able to follow the appellant to Crystal Brook Street. After parking her car near the private driveway, she stepped out of the vehicle and held up her mobile phone ready to take a photograph of the appellant.

11 There were conflicting versions as to what then occurred (from the appellant, Ms Rogers and an independent witness), but no issue is taken with the facts as found by the sentencing judge. These are that the appellant objected to his photograph being taken and reacted angrily and aggressively. He rolled forward on his bike towards Ms Rogers and she said 'get away from me'.

12 Ms Rogers then reached into her car where she kept some pepper spray and sprayed it over the appellant. She did this because of his previous assault and because she felt endangered by his aggressive behaviour.

13 The pepper spraying occurred unexpectedly and the appellant was temporarily blinded. By that stage the appellant was 'somewhat fearful' of Ms Rogers, and because of a number of psychological and psychiatric issues, had a 'sense of anxiety' about the situation that he was in. Nevertheless, the 'overwhelming emotion' in his mind at the time was one of anger and aggression.

14 It was in these circumstances that the appellant reached into the backpack behind him and brought out the knife. Ms Rogers had her hands pointed towards him in a defensive fashion and he wielded the knife towards her in 'a reckless and indiscriminate way'. As a result she was slashed more than once and received defensive injuries to her right hand and left elbow. The most serious injuries were to the hand and they involved cuts to the flexor tendon of the thumb and the muscles of the palm. (Without treatment, Ms Rogers would have suffered a loss of flexion of the thumb, difficulty in spreading her fingers, and persistent numbness.)

15 The appellant then fled from the scene. However, he voluntarily surrendered himself to police later in the day, and when interviewed on video, made reasonably fulsome admissions as to what had occurred.

16 On 12 August 2009 the appellant entered pleas of guilty to both offences in the Magistrates Court. He was then committed to the District Court where he was sentenced on 26 October 2009.

17 At the time of sentence the appellant was 26 years of age. He had no previous criminal convictions, nor any history of violence. He also had a very supportive family and partner. References from neighbours, his most recent employer, and family members indicated that the offences were out of character.

18 The appellant had a history of being ostracised and of learning difficulties while at school. However he completed Year 12 and then worked in a handful of unskilled or semi-skilled jobs interspersed with periods of unemployment. In his most recent employment as a storeman in the supermarkets, he had been regarded as a reliable, eager and trustworthy employee who was always friendly and polite. However, he had ceased that employment following his arrest and enrolled in a full-time course at TAFE studying graphic design.

19 The appellant had used cannabis since the age of 13 but did not have any other substance abuse problems. Following his arrest he had received counselling for his cannabis use through the 'Next Step Programme' which he had successfully completed. He was abstinent from cannabis at the time of sentence.

20 The materials before the sentencing judge included the reports of two psychiatrists and an assessment by a clinical psychologist. These showed that the appellant had been treated for psychiatric and psychological problems since 2002. In that year he had been diagnosed with an attention deficit hyperactivity disorder (with symptoms of impairment dating back to the age of 7) as well as a major depressive disorder. These conditions had been treated by a combination of stimulant and antidepressant medications as well as intermittent psychotherapy.

21 The expert reports also indicated that there was a connection between the offences and the appellant's psychiatric problems. In this regard, the sentencing judge found that the appellant was 'naturally prone to being anxious' and that his offences had been 'spurred predominantly' by his poor coping skills and his suspicious nature. Furthermore, he had previously experienced a 'considerable degree of paranoia' which his Honour suspected was operating 'to some extent' at the time of the second offence. Nevertheless, the appellant's psychological and psychiatric conditions did not deprive him of 'the ability to know what was right from wrong, or to appreciate how lethal that knife could be'.

22 The materials before the sentencing judge also established that the appellant had made considerable treatment gains in the period following his arrest. Between September 2008 and July 2009 he had attended 30 appointments with a clinical psychologist to address his substance abuse and behavioural problems. During this period he had remained abstinent from drug use and had made significant efforts to manage his symptoms of anxiety, to gain treatment for his substance use and to engage in his TAFE education course. It was the consensus of expert opinion that a custodial sentence would be likely to undo these gains and trigger a regression in the appellant's condition.

23 Ms Rogers' victim impact statement showed that her injuries had had very significant physical and psychological effects. She had problems in using her right thumb as well as a loss of feeling and frequent pain. Consequently, Ms Rogers had difficulty in performing simple tasks with her right hand including her craft work hobbies such as decoupage, knitting and beadwork. She also had significant scarring on the back and the palm of her right hand, and the left elbow.

24 Ms Rogers had also suffered significant emotional impacts, including flashbacks, difficulty sleeping, feelings of vulnerability and loss of enjoyment of life. She considered that these symptoms were interfering with her employment, and that as a result, her career was 'in ruins'.

25 Apart from the findings of fact already noted, the sentencing judge found that the appellant was not normally a violent person, and that there was no prior intention of stabbing Ms Rogers with the knife. He had been carrying it in case he 'got into some trouble' and in the context that there had been 'perhaps some trouble involving the complainant's son and you'.

26 At the time of committing the second offence, events had 'unfolded suddenly' and the appellant was temporarily blinded by the pepper spray. However, his Honour found it 'difficult to accept' that his response was a disproportionate reaction in self-defence. In this regard it was hardly likely that Ms Rogers was going to attack the appellant beyond using the pepper spray, and it was open to him to retreat.

27 Ms Rogers's use of the pepper spray was nowhere near as lethal as the appellant's use of the knife, and there was a gross disparity between her actions and his actions. A further aggravating feature of the offences generally, was the disparity in their ages. Ms Rogers was a 56-year-old woman whereas the appellant had been a 24-year-old man in reasonable physical health.

28 When reviewing the appellant's personal background, the sentencing judge paid full regard to his psychological and psychiatric history, and to a number of mitigating factors. The appellant had no previous convictions. He had turned himself into the police on the day of the second offence, and had pleaded guilty, thus sparing the victim from the need to testify. The appellant was also genuinely remorseful and was 'devastated' by the injuries he had inflicted on Ms Rogers. Furthermore, the appellant had stopped using cannabis and his counselling with the Next Step Programme had had a positive effect. Consequently, there was only a low risk that the appellant would reoffend.

29 The sentencing judge expressed concern that if he imposed immediate terms of imprisonment, there was a very real risk that the progress made by the appellant would be lost. His Honour was also concerned about a risk of self-harm which had been referred to in the reports. Nevertheless, it was necessary to impose sentences which would properly reflect the seriousness of what the appellant had done, and would deter others from behaving in a similar way.

30 His Honour considered that the offence of 5 September 2008 was very serious when regard was had to the nature of the harm inflicted, the criminality of the appellant's act, and the background and circumstances of the offence. Notwithstanding the appellant's psychological and psychiatric state, he had known what he was doing, and had deliberately used the weapon in the way that he did in circumstances where he could have fled.

31 Although the appellant did not require specific deterrence, there was 'a very high need in cases such as this to get the message out to the community that the use of the knife and the carrying of a knife is wrong and won't be tolerated'. Furthermore, the appellant was much younger than the complainant and had acted in a manner towards her which was grossly excessive. For these reasons:

[T]he only appropriate sentence here for both offences are terms of imprisonment. Nothing short of imprisonment will properly reflect the circumstances of these offences. Having said this, because of the mitigating factors, the terms of imprisonment that I'm about to impose are considerably less than those which would be normally imposed. I am concerned that the length of the sentence is not so great as to unduly affect your mental heath, physical health, or rehabilitation.

32 His Honour imposed sentences of 6 months' imprisonment on count 1 and 16 months' imprisonment on count 2. Although these sentences would ordinarily be cumulative, his Honour told the appellant that he was making them concurrent in light of 'the progress that you've made'.

33 His Honour then went on to consider whether these concurrent terms could be suspended, but decided that they had to be served immediately. His Honour expressed the following reasons for coming to that conclusion:

I've looked at all of the circumstances of each offence all over again, and I've looked at all of the mitigating factors, which I recognise are many in this case, all over again; but I've decided that it would be wrong for me to suspend these sentences. The circumstances of the offending, and in particular count 2, are just so serious, and the need to provide proper general deterrence is so great that, notwithstanding the mitigating factors, I believe it would be wrong to suspend those terms.

Now, I have given some emphasis to general deterrence. In doing that, I'm aware, of course, of your depression and your ADHD. But while in some cases some people's psychiatric and psychological makeup means that they're not a proper vehicle for general deterrence, you are not that person.

I have taken them into account. They do, to some extent, mitigate; but the need for general deterrence does not go away. You knew that what you were doing was wrong, I have no doubt about that, and you knew what you were doing. And so I've decided that I cannot suspend the term of imprisonment that I have imposed upon you.

34 On 4 January 2010, Wheeler JA granted the appellant leave to appeal on the following grounds:

1. The learned sentencing Judge erred in law by imposing a sentence in relation to count 1 (assault occasioning bodily harm) that was manifestly excessive in light of the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the appellant's personal circumstances.
2. The learned sentencing Judge erred in law by concluding that the circumstances of the offending (both offences) were so serious and the need to provide proper general deterrence so great that the only appropriate sentencing option in relation to each offence was a term of immediate imprisonment.

35 The legal principles governing an appeal against sentence are well known. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different manner (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 672). However, it may intervene if a material error of law or fact is apparent in the sentencing judge's reasons. Such an error can be inferred if the sentence is unreasonable or plainly unjust, for example if it is manifestly inadequate or excessive (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325).

36 In the present case, and in respect of ground 1, no material error of fact or law is apparent in the sentencing judge's remarks. On the contrary, his Honour's reasons appear to be very comprehensive and carefully considered. Accordingly, the issue on which ground 1 turns is whether the sentence imposed of 6 months' immediate imprisonment was manifestly excessive, thus giving rise to the inference that a relevant error occurred.

37 When determining whether a sentence is manifestly 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 for crimes of that type, and the personal circumstances of the offender (Chan (1989) 38 A Crim R 337, 342; The State of Western Australia v Collier [2007] WASCA 250 [19]).

38 In the end, a determination that a sentence is manifestly excessive is a conclusion which often does not admit of amplification beyond stating the respect in which the sentence is excessive. It may be excessive because the wrong type of sentence was imposed (for example, custodial rather than noncustodial) or because the sentence imposed was manifestly too long. The degree of elaboration that is possible will vary from case to case (Dinsdale at 325 - 326).

39 The offence of assault occasioning bodily harm carries a maximum penalty of 5 years' imprisonment. It is difficult to discern any tariff for such cases because the circumstances in which they occur can differ widely (Kilner v The Queen [1999] WASCA 189 [21]; The State of Western Australia v Camilleri [2008] WASCA 217 [16]). Nevertheless, a review of some of the more serious examples of such cases in Kilner at [22] - [27] revealed a range of penalties from 8 months' to 2 years' immediate imprisonment. In Mourish v The State of Western Australia [2006] WASCA 257, McLure JA (at [12]) examined eight cases of assault occasioning bodily harm (each involving circumstances more serious than the present matter) where sentences of between 6 months' suspended imprisonment and 2 years' immediate imprisonment were imposed.

40 In my opinion, the circumstances of the appellant's particular offence placed it towards the lower end in the scale of seriousness for assaults occasioning bodily harm. Although the spitting was an aggravating factor, the offence was unpremeditated, no weapon was used (other than pushing forward the wheel of the bike), and the result was a relatively slight injury. Furthermore, the personal circumstances of the appellant had a significantly mitigatory effect.

41 To my mind a sentence of 6 months' immediate imprisonment was manifestly excessive in all of the circumstances. Not only was a term of 6 months too long, but a sentence of imprisonment (whether immediate or suspended) was the wrong type of penalty altogether. In this regard, this was not a case where the protection of the community required that penalty, and it was necessary for the sentencing judge to be satisfied that the seriousness of the offence was such that only imprisonment could be justified (s 6(4) Sentencing Act 1995). In my view it is self-evident that when the offence is viewed in isolation (as it must be: Pearce v The Queen (1998) 194 CLR 610, 624) it was not open to his Honour to come to that conclusion.

42 It follows that the first ground of appeal should be upheld.

43 It is common ground on appeal that imprisonment was the only appropriate penalty for the appellant's second offence, and that the term of 16 months imposed fell within a reasonable range. The issue raised by ground 2 is whether the sentencing judge erred in law in concluding that the two terms could not be suspended, and that the only appropriate option was immediate imprisonment.

44 In coming to that conclusion, the sentencing judge had to revisit all matters relevant to the initial decision to impose imprisonment (Dinsdale at [85]), and be satisfied that suspended imprisonment (conditional or otherwise) or some lesser sentence were not appropriate options (Collins v The State of Western Australia [2007] WASCA 108 [12] - [18]; Skipworth v The State of Western Australia [2008] WASCA 64 [8]). His Honour complied with both of these requirements, and if an error occurred, it was necessarily during the last step of this process.

45 The second offence was a grievous bodily harm caused by the deliberate use of a knife, and it clearly fell into a category of cases where immediate imprisonment is generally the only appropriate penalty. However, this did not relieve the sentencing judge of the obligation to assess whether in the circumstances of the particular case, a suspended term of imprisonment might be appropriate (Collins at [21]).

46 His Honour gave two reasons for deciding that the terms could not be suspended. The first was that the circumstances of the offences, and in particular count 2, were 'just so serious'. The second was that the need for general deterrence was so great that notwithstanding the mitigating factors, it would be wrong to suspend those terms.

47 With regard to the first reason, the seriousness of each offence had to be determined by taking into account the factors set out in s 6(2) of the Sentencing Act 1995, namely the statutory penalty, the circumstances of the commission of the offence, any aggravating factors, and any mitigating factors.

48 I have already expressed my views as to the relatively low seriousness of the first offence. As to the second offence, the statutory penalty is 10 years' imprisonment. The circumstances of its commission were most unusual. The appellant had done his best to avoid Ms Rogers, but when confronted in the driveway had moved towards her in an aggressive way. The offence itself was unpremeditated, and although the appellant did not act in self-defence, his use of the knife was precipitated by the sudden use of the pepper spray. While temporarily blinded, he wielded the knife towards Ms Rogers in 'a reckless and indiscriminate way'.

49 The aggravating factors of the second offence were the deliberate use of the knife, the disparity in ages, the differing genders, and the severity of the injuries that Ms Rogers received. Mitigating factors included the spontaneity of the offence, the appellant's age, his lack of previous convictions, his voluntary surrender to the police, his remorse, his pleas of guilty, the role of his psychiatric and psychological conditions in what occurred, the steps he had taken towards his rehabilitation, and his low risk of re-offending.

50 The appellant's psychiatric and psychological conditions were of particular significance because of their causal relationship with the offending. They had resulted in a 'sense of anxiety' about the situation that the appellant found himself in, and 'to some extent', a 'considerable degree of paranoia'. The sentencing judge also found that the offences were 'spurred predominately' by the poor coping skills and suspicious nature brought about by these mental problems.

51 There being a causal relationship between the appellant's mental problems and the offending, his moral culpability was reduced (Thompson v The Queen [2005] WASCA 223 [52]). In taking those mental problems into account his Honour placed emphasis upon the fact that the appellant knew that what he was doing was wrong. This was a consideration which was pertinent to the appellant's legal responsibility as distinct from his moral culpability for the offending. To the extent that there was a lessening of moral culpability, it was necessary that this be reflected in the sentences imposed (Thompson at [53]).

52 The sentencing judge also emphasised that notwithstanding the appellant's mental problems, there was a need for general deterrence. In Thompson at [55] it was held that:

As to general deterrence, this is a factor which should often be given little weight in the case of an offender suffering from a mental disorder, such an offender not being an appropriate medium for making an example to others: R v Scognamiglio (1991) 56 A Crim R 81 at 86; Anderson v The Queen [1981] VicRp 17; [1981] VR 155 at 159. In an extreme case, considerations of general deterrence might be totally outweighed by other factors. However, in every case, the relevant factors must be balanced in a manner no different from that which is involved in every sentencing exercise: R v Letteri, unreported; CCA SCt of NSW; Library No 60497 of 1991; 18 March 1992 at 14, per Badgery-Parker J and R v Engert (1995) 84 A Crim R 67 at 70-71, per Gleeson CJ.

53 In the present case, the reduction in the appellant's moral culpability attributable to his mental condition also reduced the weight which would otherwise be given to general deterrence. In the end, the ultimate question was whether terms of immediate imprisonment were the only appropriate penalties. In my view, when full regard is had to all relevant circumstances, such an outcome was not the only appropriate option. It follows that the second ground of appeal should be upheld.

54 For the above reasons I joined in the decision to allow the appeal and set aside the sentences on counts 1 and 2. In substitution for the sentence on count 1, I agreed that there should be an intensive supervision order for 10 months with supervision and programme requirements. I also agreed that the substituted sentence on count 2 should be imprisonment for 10 months from 21 April 2010, suspended for 10 months.