Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Whether adequate consideration of sentencing options

Collins v Western Australia [2007] WASCA 108

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

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

1 ALLANSON J: Early in the morning of 14 March 2010 the applicant was with a group of friends at a nightclub in Northbridge. He was dancing. The applicant and another man, the victim, confronted each other on the dance floor. The applicant pushed the victim who pushed him back. The applicant then threw an empty whiskey glass from about 1 metre away. The glass struck the front of the victim's scalp and caused a 6 cm laceration.

2 The applicant was arrested about three hours later. He was interviewed and admitted throwing the glass and intending to hit the victim or his friend. The police charged him with unlawful wounding.

3 On 30 March 2010, the applicant pleaded guilty to that offence on his first appearance in the Magistrates Court. He was remanded on bail and a pre-sentence report was obtained. He was sentenced on 3 May 2010 to imprisonment for 8 months.

4 The applicant seeks leave to appeal against that sentence. There is a single ground of appeal:

The learned magistrate erred in law in failing to properly consider all other sentencing options available in the circumstances, other than an immediate term of imprisonment, including a suspended term of imprisonment.

5 On 1 July 2010, Jenkins J ordered the application for leave be heard at the same time as the appeal. Bail was granted on 14 July 2010 pending the hearing of the appeal. The applicant has spent 10 weeks and 2 days in custody.

6 A sentence of imprisonment should not be imposed unless the seriousness of the offence is such that only imprisonment can be justified: Sentencing Act 1995 (WA) (the Act) s 6(4). Section 39(2) sets out a list of sentencing options. A court must not use the sentencing option unless it is satisfied, having regard to div 1 of pt 2 of the Act, that it is not appropriate to use any of the options listed before that option: s 39(3). Suspended imprisonment, under pt 11, must be considered before a term of imprisonment to be served immediately is imposed.

7 In sentencing, her Honour referred briefly to the circumstances surrounding the offence and, in particular, to the trivial nature of the confrontation between the applicant and the victim leading to the throwing of the glass. She endorsed the prosecutor's comments that it was good luck that a glass thrown on a crowded dance floor had not caused serious injuries to either the victim or other people in the area. Her Honour continued:

They could have been hit, and nothing to do with any dispute at all between you and this man who supposedly pushed you, and that is the part that the community will not tolerate. Once you use a missile or a weapon of any sort, then imprisonment is it, Mr Nguyen, I'm afraid.

I need to take into account that you have pleaded guilty, and you have done that at an early opportunity, and also that you have not much of a record and that you work full-time. I appreciate that you don't have a history of doing this sort of thing but people need to take responsibility for their actions. If you can't drink responsibly, then don't drink. If your reaction in these sorts of crowded situations is to become violent and push out and lash out at people, then you need to learn to walk away, but you cannot get your glass and throw it at somebody. It just cannot be tolerated, and especially in these circumstances where there are a lot of people packed into a small area.

It is my view that an immediate term of imprisonment is what is warranted and there are no circumstances, in my view, that lead me to suspecting that they should be suspended. Notwithstanding your early plea of guilty and the lack of record and your remorse in this matter, but the weapon is the weapon, anything could have happened, totally uncontrolled, totally without warning, and quite frankly, nothing this person could do to protect themselves. There will be imprisonment and that will be for eight months.

8 The learned magistrate was making brief sentencing comments, most likely in the context of a busy list. She did not refer to all of the options in s 39(2). A magistrate is not required to state that all alternatives have been considered and excluded. It is enough that in general terms there is an indication that other alternatives have been considered and the conclusion reached that the only appropriate sentence is one of imprisonment: Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Wallace J). In my opinion, there was no error in her Honour coming to the conclusion that a sentence of imprisonment was the only option for unlawful wounding in these circumstances. The term of 8 months was also appropriate. The applicant's counsel on appeal did not contend otherwise.

9 Having determined that imprisonment was appropriate, her Honour was required to again consider all of the relevant factors in determining whether to suspend the term of imprisonment: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85]; Collins v Western Australia [2007] WASCA 108 [12] - [18].

10 Her Honour's reference to suspended imprisonment is confined to the comment that 'there are no circumstances ... that lead me to suspecting that [imprisonment] should be suspended'.

11 Her Honour, however, had before her a pre-sentence report referring to the following factors. The applicant was 27 years old (he is now 28). He was born in Vietnam and immigrated to Australia at 9 years of age. His first language is Vietnamese. He ceased formal education half-way through year 10 under some degree of pressure from his family to cease his education and work full time. Since then he has worked in the family-owned market garden, and is currently employed full time in a family owned and operated fruit and vegetable store, working six days a week.

12 The applicant has a minor offending history, with his last appearance before the courts in 2004. There are no prior convictions for violence. He has no significant history of substance use, save for drinking alcohol to the point of intoxication. He acknowledged alcohol misuse as an emerging pattern and acknowledged its contribution to the events. The applicant was described as aware of the importance of acquiring skills to implement behavioural change, and is highly motivated to undertake the necessary intervention.

13 The applicant had admitted his conduct when first interviewed by police, and had pleaded guilty at the first opportunity. He did not attempt to attribute blame to the victim and had expressed a deep sense of shame and remorse.

14 Given these factors, and the comments of the learned magistrate, she did not, in my opinion, give adequate consideration to the option of suspending imprisonment. The sole ground of appeal has been established. Leave to appeal should be granted and the appeal upheld.

15 Under s 14(1) of the Criminal Appeals Act 2004 (WA), in allowing the appeal, the court may set aside the sentence imposed, substitute a decision that should have been made by the court of summary jurisdiction, or make any other order the court thinks fit. The court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard: Criminal Appeals Act s 14(5).

16 Accordingly, I take into account that since the applicant was sentenced, he has served 10 weeks and 2 days in prison. He has been on bail since 14 July and I am advised that he is again fully employed and has fully complied with his bail conditions. He has been made the subject of a prohibition order under s 152E(2) of the Liquor Control Act 1988 (WA) and that order bans him from entering licensed premises for five years from 1 July 2010.

17 In the circumstances, having regard to matters since conviction and to the personal factors detailed above, I am satisfied that a term of imprisonment remains appropriate, but that imprisonment should be suspended. The applicant has served a little over 2 months. The court may not impose a term of imprisonment of 6 months or less. Taking into account the period already served, I impose a sentence of imprisonment for 6 months and 1 day, to be suspended for 9 months.

18 I grant the application for leave to appeal and allow the appeal. I set aside the sentence imposed by the magistrate and impose a sentence of imprisonment for 6 months and 1 day, to be suspended for 9 months.