Criminal law and procedure - Sentence - Assault occasioning bodily harm - Whether consequence of grievous bodily harm can be taken into account - Lewis v Polidano not followed - Whether sentences manifestly excessive

Sentencing Act 1995 (WA), s 7(3)

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264

Lewis v Polidano [2003] WASCA 312

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

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

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

Trompler v The State of Western Australia [2008] WASCA 265

1 McKECHNIE J: Mr Langdon is 20. On 10 August 2008 when he was still 19, he went into Northbridge with some friends. Walking home slightly intoxicated, he saw Mr Feeney doing something that displeased him so he hit him in the face.

2 Mr Noori was nearby, but looking away when Mr Langdon punched him in the head. Mr Noori fell unconscious to the ground and has now lost his sense of smell and has an indefinite prognosis on his sense of taste. Mr Langdon did little to help either man and walked off.

3 Mr Langdon was charged with assault occasioning bodily harm to both men. He stood trial, was convicted and sentenced to concurrent terms of 8 and 15 months immediate imprisonment with a parole eligibility order from 23 November 2009. He appeals against those sentences.

• Should the magistrate have taken into account that Noori suffered grievous bodily harm?

4 An adjustment to the sentence of 8 months for the offence against Feeney is necessary only if the sentence of 15 months respecting Noori is set aside.

5 Leaving aside the question of suspension for the moment, the sentence respecting Feeney is clearly in range.

6 The submission on excessiveness was made chiefly by comparison with other sentences.

7 Both counsel referred to many decisions of this court and the Court of Appeal to bolster their submission that the sentence in respect of Mr Noori is or is not excessive. Many are gathered together in Mourish v The State of Western Australia [2006] WASCA 257 at [12] and earlier in Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 from [129] while The State of Western Australia v Camilleri [2008] WASCA 217 sets out ranges for both assault occasioning bodily harm and unlawfully doing grievous bodily harm. Trompler v The State of Western Australia [2008] WASCA 265 is also relevant.

8 A range of sentences commonly imposed is just that - a range. Making allowances for the jurisdictional limit of 2 years, a sentence of 15 months is close to the upper limit of the range. However, a sentence beyond the range is not necessarily excessive. All circumstances must be considered. The actual harm caused is one consideration and the magistrate said it was important. The age and antecedents of the offender is another. So also is deterrence. The magistrate considered no personal deterrence was required for Mr Langdon but that general deterrence was important:

[B]ecause the way in which the court deals with this sort of behaviour is something that needs to be seen in the community generally ... it might just act as a warning to people that they won't take that ultimate step of striking out because imprisonment obviously is a significant deterrence factor.

9 Leaving aside for the moment the harm caused to Mr Noori, the magistrate's focus on general deterrence was appropriate. If the magistrate's conclusion on the harm suffered is right the sentence is within the range and also is not excessive.

10 The parties joined issue on the question of suspension. The magistrate was clearly alive to it. He noted that immediate imprisonment should not be imposed if there are other options. He would not have imposed immediate imprisonment for the Feeney assault alone but felt the consequences of the Noori assault so serious that only a sentence of immediate imprisonment was appropriate.

11 The pre-sentence report was favourable. Mr Langdon is young without previous convictions. He had good references and was employed.

12 However, his two assaults were cowardly and violent. The decision not to suspend imprisonment for a person of Mr Langdon's background and character is always difficult and judicial officers might reach different conclusions. The decision is for the trial magistrate and an appellate court cannot intervene unless there is an error of principle or the decision is plainly wrong.

13 The balance between the personal characteristics of the offender and the need for general deterrence was a matter for the magistrate and the result was open Unless the magistrate was wrong to take into account the consequences to Mr Noori, the decision to impose immediate imprisonment was open.

Should the magistrate have taken into account that Noori suffered grievous bodily harm?

14 Mr Utting submitted that the magistrate wrongly took into account that aspect of bodily harm suffered by Mr Noori which was grievous because Mr Langdon had not been charged with the more serious offence. At the trial Dr Goodheart was called by the prosecution and expressed a medical opinion, the consequence of which was that Mr Noori's injuries could be described legally as grievous bodily harm. This called for a response which was given next day by Mr Meertens for the prosecution who explained why, for reasons of expedience, the prosecution decided to leave the matter as charged in the Magistrates Court subject to the lower jurisdictional limit. Mr Utting submitted when Mr Meertens explained his decision to continue with the lesser offence the prosecution expressly gave away reliance on grievous bodily harm and it is wrong in principle to be punished for an offence for which Mr Langdon was not convicted.

15 He supported his submissions by reference to Lewis v Polidano [2003] WASCA 312 where Scott J said:

The prosecution having elected to charge the respondent with an offence less serious than the facts warranted, it cannot then rely on facts which would have rendered the respondent liable to a more serious penalty: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 per Gibbs CJ, at 392, and Brennan J, at 405 - 406. [25]

16 With great respect I do not agree. The Sentencing Act 1995 (WA) s 7(3) was designed to alter the law as expressed in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and did so. The harm suffered by Mr Noori was correctly identified by the magistrate as an aggravating factor increasing Mr Langdon's culpability even if that harm might also constitute another offence. The sentence did not exceed the jurisdictional limit for an assault occasioning bodily harm and the magistrate was right to take the consequences of Mr Langdon's actions into account.

17 The appeal is dismissed. Mr Langdon has spent 4 weeks in custody and must serve the balance of the term imposed by the magistrate. The parole eligibility order remains.