Criminal law and procedure - Sentencing - Unlawful wounding by 'glassing' - Early guilty plea - Relevance of community expectation as to sentence - Whether adequate weight was given to mitigatory factors - Consideration of suspended sentence

Appellant resentenced to conditionally suspended imprisonment

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

Duggan v Coelho [2009] WASC 372

Long v Mayger [2004] WASCA 41

McKenna v The Queen (1992) 7 WAR 455

Pearson v Newton [2010] WASC 98

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

Wicks v The Queen (1989) 3 WAR 372

Withnell v Walker [2005] WASC 8

The offence charged and the process of appeal

1 On 20 January 2010, the applicant pleaded guilty in the Magistrates Court to a charge that, on 22 November 2009, he unlawfully wounded another man. The prosecution notice was dated 23 November 2009, and when the applicant appeared in the Magistrates Court on that date he was remanded in custody to a bail hearing on 30 November 2009. Bail was granted, and the applicant remained on bail after he pleaded guilty on 20 January 2010 and the case was adjourned for sentence.

2 On 11 March 2010, the applicant was sentenced to 18 months imprisonment to be immediately served, with eligibility for parole. He would therefore have to serve 9 months before becoming eligible for parole. He remained in custody, serving that sentence, until I heard his application for leave to appeal on 11 June, 3 months later. Having heard argument on the appeal, I granted leave to appeal and allowed the appeal to the extent necessary to vary the sentence by imposing a term of 18 months conditionally suspended imprisonment, an order which would, of course, date from the day when it was made on 11 June. I suspended the sentence for a period of 18 months.

3 The conditions upon which the service of the sentence was suspended included a supervision requirement and a program requirement directed to having the applicant undergo such counselling and treatment as his community corrections officer might consider to be appropriate for the purpose of dealing with the applicant's tendency to abuse the consumption of alcohol and directed towards instruction about anger management. These are my reasons for making those orders.

4 Unlawful wounding is an offence defined by s 301(1) of the Criminal Code (WA). The offence may be charged as having been committed in circumstances of aggravation. The relevant circumstances of aggravation are set out in s 221(1) of the Code. They are, where the offender is in a family and domestic relationship with the victim, a child was present when the offence was committed, the commission of the offence constituted a breach of a violence restraining order, or the victim is of or over the age of 60 years. This offence was not charged as having been committed in circumstances of aggravation.

5 If the charge alleges circumstances of aggravation which are proved, the offender is liable to imprisonment for 7 years on indictment, or to imprisonment for 3 years and a fine of $36,000 if summarily convicted. In this case, the applicant would have been liable to imprisonment for 5 years if convicted upon indictment, but, being convicted summarily, was liable to imprisonment for 2 years and fine of $24,000.

6 It is clear that that summary penalty is a jurisdictional limit marking the point at which, if the case warrants the imposition of a greater penalty than may be imposed summarily, the magistrate ought to commit to the District Court for sentence under s 5(9) of the Code: Pearson v Newton [2010] WASC 98 [2], citing my decision in Ravi-Pinto v Power (Unreported, WASC, Library No 930647, 26 November 1993) 13.

7 With respect, I would not follow the decision of Miller J in Withnell v Walker [2005] WASC 8, where, at [12] - [13], his Honour held that a magistrate who considered sentence by starting with a term of imprisonment greater than the maximum available to him and reduced it, having regard to mitigatory circumstances, to a point below that jurisdictional maximum, had erred in his approach.

8 The facts as found by his Honour the magistrate are as follows:

The facts of this case are as follows: at about 10 pm on 22 November 09, the two accused, Mr Tickner and Mr Stone, were on Central Avenue, Inglewood. The complainant was a customer at the Inglewood Hotel, Beaufort Street and he was drinking with friends. Mr Tickner was also drinking alcohol at the Inglewood Hotel. Whilst in the hotel Mr Tickner had a verbal argument with the complainant. Mr Tickner advised his co-accused, about the altercation and pointed the complainant out to Mr Stone. Stone, upon seeing the complainant on Central Avenue adjacent to the Hotel getting into his vehicle, has run to the complainant.

A physical altercation has taken place where Stone has hit the complainant and the complainant hit him back. Mr Tickner seeing this ran to the complainant with a glass in his right hand and smashed the glass into the right side of the complainant's face. Mr Stone, the co-defendant, has used his right hand holding a glass and hit the complainant to the left side of the face. Both glasses held by both the accused shattered upon impact and the two accused then left the scene. The complainant was conveyed to Royal Perth Hospital for treatment. He sustained deep lacerations near both eyes and to his earlobe. He required stitches to the lacerations and was discharged several hours later.

Around 1 am the police located Mr Tickner and Mr Stone at Sir Charles Gairdner Hospital where they both received treatment to their right hands requiring stitches. I also have seen here today photos of the injuries sustained by the victim and they reveal severe injuries to both the left-hand side of the man's face and the right-hand side of the man's face. Anyone who was to look at those photos could only describe them as shocking.

9 His Honour then went on to refer to the fact that the applicant had said that he had, with his friend, drunk a very considerable quantity of alcohol before they attended the hotel, and then continued to drink until he was gravely intoxicated. His Honour continued:

Mr Tickner stated that upon leaving the hotel the current offences occurred. He claims he did not see the initial part of the altercation although he saw his friend hit the victim with a middy glass and jump or was pushed back. The victim has then raised his fists as if he was going to fight and it was at this point Mr Tickner got involved to protect his friend and break up the fight. He readily conceded his actions were excessive and he did not respond in a like manner as the victim was not armed. He stated he should have tried to resolve the situation without aggression in the first instance.

He expressed regret for his involvement in the altercation and shows remorse for the injuries sustained by the victim. He stated that he was very intoxicated at the time and he was not thinking clearly, although he in no way attempted to justify or to use this as a justification for his actions. He stated he thought he was doing a good thing to help his friend, although it went too far and got out of hand.

10 In the end, then, although the applicant was clearly right to concede that his actions constituted a gross overreaction to the situation with which he was presented, he leapt in and delivered the blow while holding the glass to assist his friend whom he thought was then going to need to defend himself. It seems that it was accepted that the blow, although struck deliberately, was not struck, for the purpose of using the glass as a weapon with the intention of causing harm to the victim, although harm was done.

11 His Honour had a medical report from the victim's treating doctor, who said that extensive plastic surgery was required, particularly adjacent to the right eye. The doctor also referred, in his report, to psychological trauma suffered by the victim which required him to be referred to a clinical psychologist for treatment. As at the date of the hearings in the Magistrates Court, that treatment was continuing.

12 That evidence was confirmed by the victim impact statement which was before his Honour. The victim was thankful, he said, that, 'no bones were broken and that I didn't lose an eye or worse; that I suffered only soft tissue and superficial damage.' But he went on to refer to the psychological trauma associated with loss of confidence in his dealings with other people and very noticeable scarring. His sleep patterns were disrupted. Family and social relationships were 'put under strain' because of his mood swings.

13 As to the circumstances personal to the applicant, the magistrate referred to the fact that he had been presented with a criminal history which showed that this 29-year-old man had one previous conviction recorded as having been sustained on 20 October 2009, a conviction for disorderly behaviour in a public place contrary to s 74A of the Code, for which a fine of $500 had been imposed. However, the applicant had informed the court, through counsel, that he had no recollection of sustaining any such conviction and it was never proved. The magistrate rightly dealt with the applicant as a person with a formerly unblemished record.

14 The court was told that the applicant was employed as a fund-raising team leader with the charity Greenpeace. He had been employed in that capacity for some time, and in that capacity he was regarded, by those who were in positions of authority over him and by colleagues, as a hard-working, effective employee. References from such people were provided to the court and reviewed by the magistrate in his remarks.

15 A pre-sentence report referred to the applicant's 'alcohol abuse'. The applicant had told the community corrections officer that his use of alcohol socially had been increasing since his teenage years, and he accepted that it could be considered excessive since the age of about 22, although he said he rarely indulged in 'binge' drinking, as he had done on the day when this offence was committed.

16 As the magistrate noted, the applicant expressed what was accepted to be genuine remorse for his conduct and the injuries inflicted upon the victim. The pre-sentence report observed that the applicant was regarded as a suitable candidate for a community based disposition and recommended that any such order should include a program requirement and a supervision requirement.

17 His Honour expressed his views very clearly. Having reviewed all the evidence in relation to sentence, he said:

As indicated earlier the maximum penalty that this summary court can impose for unlawful wounding is two years imprisonment and a fine of $24,000. Within those parameters judicial officers must exercise their discretion, but this discretion has to be exercised in accordance with community expectations. I appreciate that community expectations are not always easy to determine but one very clear community expectation is that if someone smashes a glass or bottle into another person's face and causes disfiguring injuries, then that person must be dealt with by way of a prison sentence.

Sentences have two functions: specific deterrence, and general deterrence. A specific deterrence is of course the deterrence directed at the individual defendant. The general deterrence is directed at the community in general so that the general community is aware that as in this situation if one smashes a glass or bottle into another's face and causes disfiguring injuries, then that person will be sent to gaol. That is the purpose of general deterrence and that is what the community expects, and it is the community expectation that must determine the judicial discretion.

Judicial offices don't have the discretion outside the scope of community expectations and if they do venture outside the scope of community expectations then it is the appellate court's duty to amend the penalty back to within the scope of community expectations, and even the appellate courts have the obligation to be guided by community expectations.

18 I shall return to the matter, but it is in his Honour's remarks about the significance of community expectations as limiting the exercise of the judicial discretion in relation to sentencing, that in my respectful opinion, his Honour has fallen into error and the discretion has miscarried.

19 His Honour went on to refer to the limit of his sentencing powers, and observed that the offence was 'clearly too serious to be dealt with by way of a fine'. His Honour added that he considered that, 'this offence is far too serious to be dealt with by way of a community based order'.

20 The magistrate observed that, having regard to the applicant's good antecedents and his remorse, his Honour appreciated that particular deterrence was not a determining factor in relation to the sentence to be imposed, but he returned to the theme that general deterrence, guided by community expectations, dictated that the only appropriate sentence was one of imprisonment and that, 'as I think that this is the most serious example of such a case that can be dealt with summarily, the starting point should be the maximum period of two years.'

21 His Honour summed up his view of the case in the following way:

The seriousness of the offence itself overrides all of the mitigating circumstances and personal circumstances that may have arisen from the reports and references I have received on behalf of Mr Tickner. The circumstances of this assault that lead me to the conclusion that a prison sentence is the only appropriate sentence is the cowardly nature of this assault; it was two onto one; the fact that a weapon as distinct from a fist was used; the nature of the weapon used, namely a glass and its potential to break and inflict serious disfiguring injuries to the victim's face; and the impact of the injuries upon the life of the victim as indicated in the victim impact statement, both physical and psychological and ongoing.

22 His Honour considered that the 2-year term which he took as his 'starting point' should be reduced by 25% for the remorseful early plea of guilty. That brought him to the term of 18 months imprisonment, and his Honour went on to consider whether the service of that term might be suspended. He considered that it should not be, for the reasons given, concerned with what his Honour regarded as the overwhelming seriousness of the offence, and what his Honour perceived to be the community expectation that whenever a glass or bottle was used as a weapon to inflict disfiguring injuries upon a victim, a sentence of imprisonment to be immediately served should be imposed.

23 The application for leave to appeal was argued on three grounds, the first two of which I set out below:

1. The learned Magistrate erred in law by placing such emphasis on general deterrence that other relevant sentencing considerations were not taken into account, including rehabilitation and the principle that imprisonment is a sentence of last resort, and thereby failed to give sufficient consideration to non-custodial sentencing options.
2. The learned Magistrate erred in law by failing to take into account or failing to adequately take into account the mitigating circumstances of the Appellant and sentencing standards, resulting in a sentence that was disproportionately long.

(i) The maximum sentence available for a wounding dealt with summarily is 2 years' imprisonment;

(ii) The learned Magistrate imposed a discount of 25% in recognition of the Appellant's plea of guilty;

(iii) No other mitigating circumstances were factored into the determination of the length of the sentence;

(iv) The sentence was disproportionately long when considered against sentencing standards.

24 The third ground of appeal was that the magistrate overlooked the fact that the applicant had been remanded in custody from the point of his arrest on 23 November 2009 until he was granted bail on 3 December 2009, a period of 11 days. There was no reason, if a sentence of imprisonment to be immediately served was to be imposed, that the sentence would not be backdated to take account of that remand period: Sentencing Act 1995 (WA), s 87. That meant that if a sentence of immediate imprisonment was to be imposed on 11 March 2010, it would have been ordered to commence on 28 February 2010. That that should have been done was conceded by the respondent, but, as has been seen, in view of the orders I made upon the resentencing of the applicant, it was unnecessary to have regard to this aspect of the appeal.

25 The first two grounds of appeal may be taken together. The first issue they raise concerns what I have already described as the magistrate's error in relation to the necessity for the court to exercise its sentencing discretion, having regard to and according to the dictates of the community's expectation in relation to the punishment of such offences, as his Honour perceived it to be.

26 There is no doubt of the relevance to the sentencing process of the public opinion perceived by the court to exist, however it comes to the attention of the court, whether by media reports or simply as the judge functions as a citizen in the ordinary course of daily life. But to say that the exercise of sentencing discretion in a particular case is dictated by the public expectation is to distort and unduly fetter the exercise of the discretion: Wicks v The Queen (1989) 3 WAR 372, 382, per Malcolm CJ; McKenna v The Queen (1992) 7 WAR 455, 465, per Seaman J.

27 The duty of a sentencing judge is to exercise the discretion having regard to recognised sentencing principles so far as they may be material to the circumstances of the particular case before the court. The court is to have regard to those matters which tend to aggravate the seriousness of the offence and the severity of the punishment required, and those which pull in the opposite direction and tend to mitigate the offender's culpability and the punishment which ought to be imposed. The difficult task of the sentencing judge is to weigh those matters and give all relevant factors appropriate weight so as to arrive at a sentence which is of a type and severity which is proportionate to the offence committed in all the circumstances, whether concerned with the commission of the offence itself or personal to the offender.

28 The perceived expectation of the community may tend to mitigate punishment in some cases, and to aggravate the perceived seriousness of the offence in other cases. Whatever be its effect, it is one of many matters to which the sentencing court must have regard, whether the community expectation is expressed in the penalty provided by the legislation, or whether it is otherwise expressed. But in this case, in my respectful opinion, his Honour the magistrate allowed what he perceived to be the community expectation to prevent him giving due weight to matters which were in mitigation of punishment.

29 On the other hand, in my view the applicant has not made out the proposition that the magistrate failed to have regard to mitigating circumstances. Certainly his Honour discounted by 25% the 2 years imprisonment which was the limit of his jurisdiction expressly for the plea of guilty which had been entered. But in my opinion, it does not follow, having regard to the careful and thorough exposition of the facts which the magistrate set out, that his Honour failed to have regard to other mitigating circumstances.

30 This is yet another example of the difficulty which may be occasioned when the instinctive synthesis process of arriving at the ultimate sentence to be passed is abandoned in favour of a process of discounting periods of time from a notional 'starting point' to arrive at the ultimate sentence. It is clear, to my mind, that the magistrate had regard to all the matters which had been advanced to him as aggravating and as mitigating punishment, respectively. If one were to apply a starting point, having regard to all the aggravating circumstances and then discount for the various mitigating circumstances, it is apparent to me that his Honour must have started his consideration of sentence well above the 2-year jurisdictional limit. But as has been seen, that, of itself, does not demonstrate error in the exercise of the sentencing discretion.

31 In the final analysis, I am unpersuaded that this was not a case where the seriousness of the offence could lead property to the conclusion, despite the mitigating circumstances, that the only appropriate punishment was the imposition of a sentence of imprisonment, and for the magistrate to fix the term of 18 months does not, in my view, of itself, demonstrate error by reason of the length of that term.

32 The leading case in relation to this matter, the exercise of a power which arises under s 76 of the Sentencing Act, is the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. Having regard to the terms of the Act, and that authority, the process is abundantly clear. The decision whether or not to suspend the immediate service of a term of imprisonment is a decision to be made after the court determines, having regard to s 39 of the Act, that a sentence of imprisonment is the only appropriate sentencing option which will suffice in the case before it.

33 Then the court must consider whether the immediate service of that sentence is required or whether it should be suspended for a period, and if so, for how long. In the case of the exercise of power by a prescribed court, it must be decided upon what conditions suspension should be ordered. It is therefore a two-stage process and, in relation to consideration of the exercise of the power to suspend service of the term of imprisonment, the court will have regard to the same considerations and circumstances, whether they be aggravating or mitigating in their tendency, which informed its decision that the only appropriate punishment was a sentence of imprisonment.

34 In Long v Mayger [2004] WASCA 41, Steytler J collected the authorities and helpfully summarised their effect at [26] - [27]:

1. Amongst the factors which should be considered in deciding whether or not to suspend a sentence are the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of a suspended sentence; the perceived seriousness and intrinsic character of the particular offence; whether there is any element of persistence; general deterrence; factors personal to the offender, including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at; the need to demonstrate the condemnation of the community for offences of that kind; and reasons militating in favour of an exercise of mercy.
2. The personal mitigating circumstances of the offender which must be considered (at both stages of the sentencing process) include such circumstances as the fact that the offender has no prior convictions (although the existence of prior convictions, even convictions which have carried sentences of imprisonment, is not necessarily a bar to the imposition of a suspended sentence); youth; advanced age; illness; the fact of steady continuing employment or good prospects of education or employment and the fact of the provision of 'genuine information to the authorities about the workings of organised crime'. As to this last consideration, the fact of the provision of information of this kind might expose the informer to the danger of retributive violence, which danger can be aggravated within a prison environment. (citations omitted)

35 An important consideration in relation to sentence is how best may the offender's prospects of rehabilitation be enhanced, because the offender's rehabilitation and his restoration to the ranks of those who lead law-abiding ways of life provides the best guarantee that the community may be protected from further offending.

36 In this case, in my opinion, his Honour's exercise of discretion miscarried as a result of the approach he took, which caused him to consider that suspension of the term he imposed was inappropriate.

37 The offence as committed was certainly serious. It caused substantial harm to the victim, and the applicant intervened in a misguided attempt to assist his friend, when more mature judgment, not affected by the gross over-consumption of alcohol, would have shown him that other means were available to break up the altercation between his friend and the victim, and prevent further harm occurring. The fact that he misjudged the situation as a result of his gross intoxication provided him with no excuse.

38 But the applicant's intervention was on the spur of the moment, and although he deliberately inflicted the blow with force sufficient to break the glass in his hand, there was no evidence that he intended that the glass should break and inflict the harm which occurred.

39 The applicant was a young man of previously good character, performing well in his chosen field of employment, with no previous convictions, who had therefore never previously been punished by imprisonment for any offence. His prospects of rehabilitation were excellent if, as was the case, he was prepared to address his over-consumption of alcohol. The threat of activation of a suspended term of imprisonment would be a sufficiently punitive response by the court.

40 It was for those reasons that I concluded that the exercise of sentencing discretion had miscarried by the failure to suspend the term imposed, and upon the resentencing which followed that conclusion I made the order for the suspension of that term.

41 As has been seen, I did so conditionally. The magistrate did not have that power. His power to suspend imprisonment was simply to so order. But I have concluded that the appropriate order upon my resentencing the applicant is to impose conditional suspended imprisonment with the supervision and program requirements to which I have referred.

42 I have concluded that it is open to me to exercise that power for the reasons expressed by Hall J in Duggan v Coelho [2009] WASC 372 [33] - [37]. It is unnecessary that I should repeat his Honour's reasoning in detail. It is sufficient that I say that I made the orders for suspended conditional imprisonment, exercising the power given to the court by the Criminal Appeals Act 2004 (WA), s 14(1)(i), when the court allows an appeal, to make any order the court thinks fit to meet the justice of the case.