Criminal law - Appeal against sentence - Assault occasioning bodily harm - Dinsdale v The Queen - Did learned magistrate consider all factors relevant to decision to suspend - Was sentence manifestly excessive - Role of community expectations in sentencing - Error established

Sentencing Act 1995 (WA), s 24, s 39, s 76, s 81

Chan v The Queen (1989) 38 A Crim R 337

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

Duggan v Coelho [2009] WASC 372

Kilner v The Queen [1999] WASCA 189

Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289

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

McKenna v The Queen (1992) 7 WAR 455

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

R v Rivkin [2004] NSWCCA 7

Ravi-Pinto v Power (Unreported, WASC, Library No 930647, 26 November 1993)

Stoker v Raitt [2009] WASC 40

Wicks v The Queen (1989) 3 WAR 372

1 This is an appeal against a sentence of 18 months' imprisonment which was imposed by a magistrate in the Perth Magistrates Court on 9 December 2009 for an offence of assault occasioning bodily harm. Leave to appeal on all grounds has been granted. The appellant was released on bail on 23 December 2009.

2 The maximum penalty for this offence is 5 years' imprisonment but on summary conviction the maximum penalty is 2 years' imprisonment or a fine of $24,000. The maximum penalty which can be imposed in the Magistrates Court is merely a jurisdictional limit and is not a maximum penalty to be reserved for the worst cases of the type: Ravi-Pinto v Power (Unreported, WASC, Library No 930647, 26 November 1993) 13 (Murray J).

3 Essentially, the grounds of appeal allege that the learned sentencing magistrate erred in not imposing a suspended term of imprisonment (ground 1), and that the sentence was manifestly excessive (ground 2).

4 There was no dispute about the facts before the learned sentencing magistrate. What follows comes from his Honour's sentencing remarks (which include extracts from the pre-sentence report), and the plea in mitigation.

5 The appellant was, on 28 August 2009, 20 years of age. He is a large man 190 cm tall and weighs 120 kg. The victim was considerably smaller. He is 175 cm tall and weighs 80 kg.

6 The appellant was born and grew up with a supportive family in Broome. He came to Perth to participate in a pre-apprenticeship employment in the building industry. He was away from home for the first time.

7 On 28 August 2009, the appellant was with a group of workmates drinking at the Charles Hotel in North Perth. The victim was also at the hotel. The appellant was, at the time of the offence, intoxicated, having drunk about 15 beers.

8 At about 7.05 pm, a brawl erupted in the hotel car park involving approximately 15 people. The appellant did not start the brawl but he participated in it, as did the victim. At some point, the appellant was struck by a person whom he believed was the victim. A short time later the appellant punched the victim.

9 The circumstances of this blow were that the appellant went up to the victim who turned to look at him. The appellant then punched the victim in the face. This single blow must have been forceful. The victim was knocked out and fell to the ground striking his head on the bitumen.

10 The victim suffered severe concussion and a fractured right eye socket which had to be surgically repaired. His Honour was told that the victim sustained bleeding on the brain.

11 I pause to note that the medical report which was tendered to his Honour does not refer to bleeding on the brain. I raised this with counsel at the hearing of this appeal. Mr Miocevich for the appellant accepted that there was some bleeding on the brain. Both counsel agreed that its extent was minor.

12 The victim was hospitalised for five days and was unable to work for approximately six weeks. As a result of the effects of the assault, particularly his inability to earn an income, the victim returned to his homeland, Ireland.

13 The appellant made full admissions to the offence and pleaded guilty at an early stage in the proceedings on 30 October 2009. His Honour called for a written pre-sentence report and remanded the appellant on bail for sentence to 9 December 2009.

14 There was no dispute that the appellant's antecedents were favourable to him. The appellant had youth on his side. He was a first offender. He came from a supportive family.

15 The appellant completed Year 12 and had been gainfully employed since leaving school. He performed well in his pre-apprenticeship work and I was told, without objection from the respondent, that since being released on bail pending the outcome of this appeal, he has commenced a carpentry apprenticeship. His ambition on completing his apprenticeship is to return to the Kimberley and work there.

16 The references which were tendered to his Honour, spoke very well of him and showed that his offending was out of character.

17 The appellant had not previously encountered any problems with alcohol. He had, since the assault, ceased socialising with his work mates.

18 The appellant's counsel addressed his Honour in some detail about the appellant's antecedents.

19 He told his Honour, that the appellant was genuinely remorseful for the injuries he had caused the victim and he was ashamed of what he had done. He said that the appellant had not intended to hurt the victim. None of this was disputed.

20 It was submitted that the appellant believed it was the victim who struck him and that he acted out of retaliation for this assault. He submitted that the attack was not prolonged. Defence counsel submitted that the offence was out of character.

21 He submitted that a community-based order of some type was the appropriate sentence.

22 Although I have not been provided with a copy of the pre-sentence report, it is clear from the transcript of proceedings that the appellant was deemed suitable for some kind of community-based order.

23 The victim provided a victim impact statement dated 8 December 2009. It is a reminder of how this type of offence can very adversely affect victims. It is evident that the victim was happy living and working in Australia. However, because he was unable to work in the weeks following the offence, he could not afford to stay in Australia and had to return to Ireland. There, due to the economic downturn in that country and the effects of his injuries, he has been unable to get work. He has been shattered by the effects of his injuries and his inability to work.

24 The appellant took no issue with the contents of the victim impact statement.

25 His Honour was entitled to use the victim impact statement to 'assist the court in determining the proper sentence for the offender': s 24(1) of the Sentencing Act 1995 (WA).

26 His Honour dealt with the facts and the appellant's antecedents in an accurate and entirely unobjectionable way.

27 His Honour specifically acknowledged that the appellant had entered an early plea of guilty and that the references which had been presented to the court spoke highly of him. He acknowledged the appellant's lack of a criminal record and described him as having 'a promising future'. He then went on to say:

When the court comes to decide the appropriate penalty to be applied in cases like this the parameters of that sentence are defined by the legislation. That is, the maximum penalty is defined by legislation. In this case it's two years' imprisonment or a fine of $24,000, but within that scope judicial officers have a discretion. The exercise of that discretion must be and can only be determined by community expectations.

I appreciate that it is sometimes difficult to ascertain precisely what these community expectations are, but it is necessary for judicial officers to the best of their ability to ascertain and reflect in their sentencing what the expectations of the community are. There is no doubt that this community expects the judiciary to deal with the drunken violence that is prevalent in this city and other cities, with harsh penalties.

Penalties, that will provide both a specific deterrence for the individual who has been convicted of the violent offence, and a general deterrence for those who deliberately get themselves drunk and then in a drunken stupor act in a manner that endangers the life and wellbeing of others. The victim impact statement indicates the extent to which the victim in this case, his life was endangered and how his wellbeing has been badly dealt with. His wellbeing was clearly endangered by the defendant's drunken assault.

Despite the early plea, the defendant's youth, his lack of record, his right prospects, the nature and the consequences of this assault, event though it was only a one-punch assault, demand a prison sentence as distinct from a fine or a community based disposition. As indicated, the maximum prison sentence that can be applied in this court of summary jurisdiction is that of two years. Given that this assault was to the victim's head and that he suffered dangerous injuries to his head, it is an offence towards the top of the scale for assault occasioning bodily harm, rather than towards the bottom.

He is of course entitled to a reduction of that penalty due to his prompt plea of guilty. In this matter Mr Pearson is to be sentenced to 18 months' imprisonment, eligible for parole.

Having decided that the only appropriate penalty is one of imprisonment, I am now required to consider the principles set out in Dinsdale's case and determine whether that sentence of imprisonment should be suspended. Having given that consideration I don't think it should be suspended. The nature and consequences of this assault demand an immediate prison sentence for specific deterrence and more particularly general deterrence. This was a serious and dangerous assault, and the effect of the general deterrence would be diminished if this sentence was to be suspended (ts 6 - 7).

Ground 1 - did his Honour err by not imposing a suspended sentence?

28 The appellant's counsel conceded that because of the seriousness of the offence, the only appropriate sentence which could be imposed on the appellant was a sentence of imprisonment. This concession was rightly made. Notwithstanding the potent mitigating factors which existed in this case, the appellant punched the victim with obvious force and caused him to suffer serious injuries. General deterrence was required.

29 Once his Honour came to the conclusion that a sentence of imprisonment was the only option open to him, he was bound, before sentencing the appellant to an immediate term of imprisonment, to consider a suspended term of imprisonment with or without conditions: s 39(2)(f) and (g) of the Sentencing Act.

Section 76 and s 81 of the Sentencing Act

30 An immediate sentence of imprisonment should not be imposed if a suspended sentence would be appropriate: Duggan v Coelho [2009] WASC 372 [10].

31 Section 76(1) of the Sentencing Act gave his Honour the power to impose a period of suspended imprisonment without conditions and s 81(1) of the Sentencing Act gave his Honour the power to impose suspended imprisonment with conditions.

32 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, it was held that the discretion to impose a suspended sentence was not limited to the effect which suspension would have on rehabilitation and could be exercised whenever the justice of a case allowed it.

33 Kirby J in Dinsdale v The Queen held that a two-step process was mandated by s 76 of the Sentencing Act. The first step requires the court to decide whether a sentence of imprisonment and not some lesser sentence is called for. Where a court decides that a term of imprisonment is called for, the second step must be undertaken. This step involves a reconsideration of all of the circumstances relevant to the decision to impose a term of imprisonment to see whether suspension of the term is justified: Dinsdale v The Queen [79], [85].

Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations [86].

It is clear from the first sentence of the last paragraph of his Honour's sentencing remarks that the learned sentencing magistrate correctly adopted the two-step process required by Dinsdale v The Queen. However, it is at the second step of the process that his Honour, with great respect, fell into error.

35 A court is not precluded from imposing a term of suspended imprisonment for a serious offence, after all, a term of imprisonment of up to 5 years, may be suspended: s 76(1) of the Sentencing Act. While a sentence of immediate imprisonment will generally be appropriate in serious cases of assault occasioning bodily harm, it is not always so.

36 In this case, the appellant was a young first offender with excellent prospects who acted out of character. He pleaded guilty at an early stage in the proceedings and was genuinely remorseful. He did not instigate the brawl and he acted only after a person, whom he believed to be the victim, had struck him. He did not use a weapon, nor did he continue the attack. He admitted his wrongdoing to the police. All these circumstances had to be considered in the second of the two steps referred to by Kirby J in Dinsdale v The Queen.

37 However, in his Honour's brief remarks on the question of whether the sentence of imprisonment should be suspended, he made no mention of any of the matters in the appellant's favour. While the offence was undoubtedly serious, it appears to me that his Honour took into account only the nature and the consequences of the assault and the need to provide specific and general deterrence.

38 In Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289, a case like this of serious violent offending by a young man with very good antecedents, Steytler J, as he then was, emphasised the need to consider all the factors in the case when weighing whether to suspend, and not just the serious nature of the case. He said:

In this case, as I have stressed, the Magistrate considered only the seriousness of the offence. In my respectful opinion, he should not have done so. While the offence was undoubtedly serious, and while the objective features of an offence may, in a particular case, outweigh other considerations, all of the relevant factors were required to be considered in weighing up the option of a suspended sentence [30].

39 In the present case, I do not think his Honour gave consideration to all of the factors relevant to the case in the second step of the process mandated by the High Court: Dinsdale v The Queen. While his Honour had regard to the seriousness of the case and deterrence he did not consider those factors favourable to the appellant.

Ground 2 - was the sentence manifestly excessive?

41 In Dinsdale v The Queen Gleeson CJ & Hayne J said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short [6].

42 In Chan v The Queen (1989) 38 A Crim R 337 Malcolm CJ said:

To determine whether a sentence is 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 of crimes of that type and the personal circumstances of the offender (342).

43 Because the imposition of a sentence involves the exercise of a discretion, I may not substitute my opinion for that of the learned sentencing magistrate merely because I would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672. Respect must be given to the experience and wisdom of a magistrate such as his Honour who deals with cases like this one on a very regular basis.

44 I have already observed that the maximum penalty for assault occasioning bodily harm is 5 years' imprisonment, although the learned magistrate's jurisdictional limit was 2 years' imprisonment.

45 An examination of the authorities reveal that there is no discernable tariff for offences of assault occasioning bodily harm. Ipp J made this observation in Kilner v The Queen [1999] WASCA 189 [21], and much the same was said more recently by Jenkins J in Stoker v Raitt [2009] WASC 40 [33]. As her Honour observed, sometimes immediate imprisonment is imposed and sometimes not.

46 Nevertheless, I have had regard to the sentences for assault occasioning bodily harm referred to in both Kilner v The Queen and Mourish v The State of Western Australia [2006] WASCA 257. In light of these cases it is evident that 18 months' imprisonment in this case was severe. His Honour said that the imposition of 'harsh penalties' was expected by the community in cases such as this. By 'harsh' I think his Honour meant 'severe'. I assume from this statement that his Honour chose to impose what he knew was a severe sentence because in his opinion the community expected it.

47 The sentencing discretion is not dictated by community expectations: see Wicks v The Queen (1989) 3 WAR 372, 382 (Malcolm CJ); and McKenna v The Queen (1992) 7 WAR 455, 465 (Seaman J). This is not to say that a court must disregard public opinion but it cannot dictate the exercise of the sentencing discretion. In R v Rivkin [2004] NSWCCA 7, Mason P, Wood CJ at CL and Sully J said:

From time to time judges explain sentences by reference to their perception of community attitudes. Sentencing does not occur in a vacuum, but a sentencing tribunal must apply the relevant statutory and common law principles. These provide the points of focus through which the task must be addressed independently, fearlessly, with due proportion and (at times) an informed sense of mercy.

A sentencing court must strive to avoid being influenced by a 'sense of outrage' stemming from foreign sources. The outraged sense of innocence expressed by a person who has been duly convicted cannot reduce an otherwise appropriate sentence. Nor, on the other hand, can 'the community's' sense of outrage expressed through the media lead to a harsher sentence than is otherwise appropriate according to the law [427] - [428].

48 Having regard to this and all of the circumstances of the case, the severe sentence imposed on the appellant was, in my view, manifestly excessive.

50 As the sentencing discretion has miscarried it is open to me to resentence the appellant. I will not repeat what I have already said about the facts of the case and its surrounding circumstances.

51 I must sentence the appellant in accordance with the principles set out in s 6, s 7 and s 8 of the Sentencing Act.

52 In my opinion no penalty short of imprisonment was appropriate in this case. As I pointed out earlier in my reasons, this was rightly conceded by the appellant's counsel.

53 In my view, taking into account the time already served by the appellant, the appropriate term of imprisonment is 12 months.

54 I now turn to consider the question of suspension with or without conditions.

55 The offence was serious because the appellant, a considerably bigger man than the victim, punched him to the face with force. The injuries he inflicted and their consequences were far from minor. General deterrence is a matter of importance. I have considered that the appellant acted out of character, did not intend to hurt the victim, and that both men, for whatever reason, involved themselves in the brawl. The appellant had very favourable antecedents and a bright future. Significantly, in this case he was young, genuinely remorseful and unlikely to offend in the same way again. Specific deterrence is not required. I am mindful that it is a grave step to send a young man to prison for the first time.

56 Having regard again to all of the circumstances of the case, I have decided to suspend the term of imprisonment that I have imposed for a period of 12 months. I do not think that it is necessary to impose any conditions on the appellant who seems to be on the right track towards his rehabilitation.

57 The orders that I propose to make are as follows:

1. The appeal is allowed.
2. The sentence of 18 months' imprisonment imposed by the learned magistrate is set aside.
3. The appellant is sentenced to 12 months' imprisonment, suspended for 12 months.