Sentencing Act 1995 (WA) s 6(4), s 39(2)(f), s 39(2)(h), s 76(2)

Krencej v R [1999] WASCA 20

1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 28 February 2001 the applicant was convicted of doing grievous bodily harm to the complainant contrary to s 297 of the Criminal Code. The applicant had been tried on an indictment which alleged that on 10 July 1999 at Scarborough, with intent to disfigure or do grievous bodily harm to one Craig Anthony Barron, he did grievous bodily harm to Craig Anthony Barron. He was found not guilty of that offence, which carries a maximum penalty of imprisonment for 20 years under s 294 of the Criminal Code. The lesser offence under s 297 carries a maximum penalty of imprisonment for 10 years. The sentence imposed by the learned Judge on 2 March 2001 was a sentence of imprisonment for 3 years with eligibility for parole.

2 At the conclusion of the argument on 15 June 2001 the Court was unanimously of the opinion that leave to appeal against sentence should be granted, the appeal allowed and the sentence varied by suspending the sentence of imprisonment of 3 years imposed by the learned Judge for a period of one year. The applicant was then discharged from custody. The Court then indicated that the reasons for reaching that decision would be published later. These are my reasons for joining in the making of those orders.

3 The Crown case at the trial was that the appellant, with intention to either disfigure or do grievous bodily harm to Mr Barron, did grievous bodily harm to him. The Crown case was that on Friday 10 July 1999 Mr Barron and a friend went to a hotel in Scarborough where they had a couple of drinks before moving on to the Lookout Hotel, also in Scarborough. They got drinks and settled down to listen to the band. After a while Mr Barron needed to go to the toilet. To do that he had to push past a crowd of people. On his way back he again had to find his way through the crowd. He squeezed past a particular group of people and accidentally bumped the appellant, causing him to spill his drink onto the girl that he was talking to. As a result, the appellant had a few words to say to Mr Barron. There was an argument. The Crown case was opened on the basis that Mr Barron head-butted the appellant. Witnesses said that the two men were exchanging words and the appellant punched Mr Barron in the eye with the hand that was holding his glass.

4 Mr Barron was bleeding and his vision became blurred. He reached over and grabbed the appellant by the shirt. He then felt further blows to his body, but could not say who delivered them. Witnesses said that the two were grappling with each other. The crowd controller saw what was happening. He jumped off his observation point and went to separate the appellant and Mr Barron. He broke up the fight and took Mr Barron away for first aid. Mr Barron was subsequently taken to hospital by ambulance.

5 In the meantime, the appellant went to the toilet at the hotel because he had cut his hand and was bleeding. He then went outside and met up with his friends. His hand still needed attention and he went into the toilet of an adjacent restaurant to attend to the cut on his hand.

6 As a result of the incident Mr Barron required surgery for his eye. He sustained a full thickness laceration to his left upper eyelid which required stitching. There was medical evidence that Mr Barron would have suffered permanent injury to the eye if the eyelid had not been stitched up.

7 On 28 February 2001, after the verdict of the jury had been returned, the learned Judge heard submissions on sentence. His Honour then addressed the appellant as follows:

"Leon Etrelezis, you stand convicted after trial by jury that on 10 July 1999 you did grievous bodily harm to Craig Anthony Barron. The circumstances of the commission of this crime are these. On the night in question you were at The Lookout establishment - tavern or nightclub - drinking with some of your friends when Mr Barron accidentally, and I find it was an entirely accidental gesture, bumped into you, which resulted in your spilling some beer upon one of your friends, Ms Cook.

An altercation followed. I have no doubt that you both became heated in the course of that altercation. You both swore at each other, and, if there were any head-butt which may have resulted, it was a very insignificant head-butt and at all events you responded by thrusting your right hand holding a glass into the face of Mr Barron. It was a hard thrust, hard enough to smash the glass, which resulted in very serious injuries indeed to Mr Barron and severely cut hand so far as you are concerned.

Just before this outburst and this gesture by you, Ms Cook had done her best to draw you away. You had declined. You had set your mind upon thrusting this glass at Mr Barron, which you did. It was of course a thoroughly cowardly attack, as all such attacks are when a person is taken by surprise with a weapon; a person unarmed in Mr Barron's case, taken by surprise by you, you armed with this weapon.

Following this incident you must have realised the damage and the injury or at least that you had done some damage and some injury to Mr Barron, but you left the scene and after travelling some kilometres, following a telephone call on a mobile telephone, you returned but you remained in the car whilst the occupants of the car went back into the tavern. You of course defended these proceedings and, as I have explained to your counsel, that was your right.

Under no circumstances are you being punished for defending the proceedings but, as I have pointed out to your counsel, judges do always look for some sign of remorse, some sign of contrition following the events such as we have heard, and I have really failed to find any sign of remorse or contrition on your part. I am told by your counsel that you are now deeply remorseful. The injury to Mr Barron was potentially more serious. As a consequence of successful surgery he may be left with little residual disability but that is yet to be known. Without surgical intervention he could have lost a degree of sight in the eye; his vision may well have been impaired.

The kind of behaviour of which you've been convicted is simply not acceptable within the community. It is behaviour which the courts have to discourage by sentences which will serve as a deterrent to you and a general deterrence to others who are like-minded to behave in this way.

I have been presented with a number of references which I will carefully read. You are a man now of 23 years of age. You are in employment. I shall take these matters into consideration. Your counsel has asked me to suspend any sentence which I shall be minded to hand down but that, under the circumstances of this serious crime, I will not be able to do.

A custodial sentence is now warranted and is the only appropriate disposition of this dreadful crime of which you stand convicted. The extent of that custodial sentence I will say is something that I shall now consider and I shall remand you to Friday morning at 9.45 for sentencing. You may stand down."

8 In sentencing the appellant to a term of imprisonment of 3 years, the learned Judge said:

"Simone Cook's evidence was, I thought, particularly impressive. She was sober. She was a friend of yours.

She said the knock by Mr Barron was not a hard knock, it was just someone trying to get through the crush of people. The beer spilt upon her and you and Mr Barron then became aggressive. She told Mr Barron it did not matter. She tried to grab you by the arm to move you away. She did not like the way that the situation was developing. She did not see the glass thrust into Mr Barron's face because you moved slightly away and the next she saw was some punching and wrestling.

Ms Cloghan was also an impressive witness. She saw you punch Mr Barron and believes that Mr Barron then held you in a headlock. She saw Mr Barron's face bleeding. Neither Ms Cook nor Ms Cloghan could say that Mr Barron did not head-butt you and Parin supported your evidence that he did head-butt you, and it is for that reason that I am not prepared to make a finding beyond reasonable doubt that you were not head-butted, but the movement described by Mr Parin was a slight inclination of the head forward. You were only inches apart and there was simply a forward neck action by Mr Barron. The head-butt was, as I have already said, an insignificant one.

You then swung your right arm, holding the glass. After the blow was struck to Mr Barron a scuffle followed. Mr Parin plainly regarded the blow by you to be hard because he said he was surprised that Mr Barron was able to come straight back at you. Mr Parin would have expected Mr Barron to have gone down."

9 The learned Judge then noted that the appellant came from a close-knit and highly respected family. A number of references were put before his Honour which described the appellant as an intelligent, fine young man. He was employed as a waiter at the time of sentencing. Anger and aggression were said to be out of character. He was described as honest and courteous with a strong sense of responsibility. He was a member of a basketball club and was described as "an excellent role model to younger players". He was said to be supportive of friends and family. He was not regarded as a bully or a rash person. The learned Judge went on to say:

"Against this background it is indeed a matter of great regret that you have committed such a very serious crime. I have already said much about the crime. It was cowardly in the sense that you used a weapon against an unarmed person and in circumstances which should never have given rise to this kind of altercation.

It was clearly a mistake on Mr Barron's part that he upset your drink. Ms Cook did what she could to diffuse the situation. The injury to Mr Barron's eyelid, without surgical intervention, would almost certainly have led to an impediment of his sight and much discomfort. He continues to have discomfort. He requires drops in his eye in the mornings because it is very dry. Bright light irritates his eye. The consequences could well have been much worse.

Bockfus (1994) CCA 235, adopted an earlier judgment in Jones, Library 920406, 31 July 1992, that the range of sentences for the offence of grievous bodily harm is 3 to 5 years, but of course every case depends on its own particular circumstances and that is, of course, once it is determined that a custodial sentence is the only appropriate disposition. The courts have emphasised that this kind of crime is very serious indeed.

There is no independent evidence of remorse on your part. You were driven away from the scene of the incident and upon your return you remained in the car. There is nothing that was said to the authorities, or indeed anyone else, in evidence which leads me to find that you were at all concerned with Mr Barron's condition, although I do take note of the fact that your father has told me that you did make some inquiries, but I'm not told of any detail of that. From all that I know, so far as you are concerned, Mr Barron might have lost the sight of his eye and, as I say, I'm not aware of any overt approach to ascertain - to find out the extent of the damage by you. Of course, I do take into account the explanation that has been given to me why you did not re-enter the premises upon your return, but I am frankly unimpressed with the whole of your conduct following this terrible incident.

The jury have rejected your defences of this being an unwilled act and an injury done by you in self-defence. Your counsel has sought to impress upon me the devastating effect of a custodial sentence. He has submitted that I should consider, if a custodial sentence is the only appropriate disposition, the suspending of that sentence but matters personal to an offender in relation to serious crimes should not prevail over the need to impress upon the community the gravity of such offending.

To say that this crime was completely unacceptable is an understatement. The community would be outraged by it. An immediate custodial sentence is the only appropriate option open to me. I would normally be looking at a term of 3 and a half perhaps to 4 years' imprisonment. Because of all that has been said on your behalf, having regard to your age, you're 23 years of age, your lack of any relevant and indeed any real antecedent record, the sentence that you will serve will be one of 3 years' imprisonment. You will be eligible for parole and the sentence will take effect from 27 February."

"1. The sentence of three (3) years imprisonment with eligibility for parole imposed by Judge Charters on 2 March 2001 was excessive in all the circumstances insofar as the learned sentencing Judge erred in the sentencing discretion by:

(1) Placing insufficient weight upon matters personal to the [appellant], including:

(i) the [appellant's] youth;

(ii) the absence of prior convictions for offences of personal violence;

(iii) the [appellant's] previous good character and conduct and personal qualities;

(iv) the effect of a prison sentence upon the [appellant] and his family;

(v) the social stigma that would follow the conviction apart from a prison sentence;

(vi) the absence of any residual disability to the Complainant subject only to minor cosmetic surgery;

(vii) the low likelihood of the [appellant] re-offending; and

(viii) the circumstances of the offence, and in particular the evidence of several prosecution witnesses as to the Complainant's conduct towards the Appellant before and during the incident, the subject of the charge.

(i) the need for 'general deterrence'; and

(ii) the seriousness of the offence;

(3) Finding as a fact and placing weight thereon for the purposes of sentence:

(i) the [appellant] had displayed no remorse, when there was no evidence to support that finding; and

(ii) the [appellant] fled the scene of the incident when he knew of the seriousness of the injuries to the Complainant, when there was no evidence that the [appellant] did know of the seriousness of the injury;

when the findings were unsupported by any evidence and were against the weight of the evidence."

11 The imposition of a sentence is an exercise of judicial discretion. The principles upon which an appellate court must deal with an appeal against sentence were recently re-stated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007. It is not sufficient that an appellate court may have taken a different approach or imposed a different sentence. It must be demonstrated that the sentencing Judge erred in the exercise of his or her discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 per Dixon, Evatt and McTiernan JJ; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 520 per Dixon, Evatt and McTiernan JJ; Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 per Kitto J; R v Tait (1979) 46 FLR 386 at 388 per Brennan, Deane and Gallop JJ; Chan (1989) 38 A Crim R 337 at 344 per Malcolm CJ; and Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994 per Franklyn, Wallwork and Owen JJ.

12 The appellant's primary contention was that, before imposing a term of imprisonment, a court passing sentence must first consider whether suspended imprisonment or immediate imprisonment is appropriate having regard to s 39(3) of the Sentencing Act 1995 (WA) ("the Act"): Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538. As Parker J (with whom Wallwork and McKechnie JJ agreed) said in Latham v The Queen [2000] WASCA 338 at [9] - [11]:

"The recent decision of the High Court in Dinsdale v The Queen [2000] HCA 54 has done much to clarify the law as to many of the issues canvassed in the course of argument. Rather than traverse the arguments it is now sufficient to note that the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially to the effect which suspension would have on rehabilitation of the offender is not an appropriate approach; Dinsdale (supra) at [84]. Rather, the same considerations that are relevant to the imposition of a term of imprisonment are to be revisited in determining whether to suspend that term. It would appear that "double weight" may thus be attributed to factors relevant to the offence and to the offender - whether aggravating or mitigating - which may influence or determine the decision whether to suspend the term of imprisonment; Dinsdale at [84] and [85] per Kirby J, Gaudron and Gummow JJ concurring at [26]; note also Gleeson CJ and Hayne J at [18].

Unfortunately, the reasoning of their Honours in Dinsdale may leave open the possibility of some difference of understanding whether a particular order of approach must be followed by a sentencing Judge when considering whether or not a suspended sentence is to be imposed; compare Kirby J at [78] - [80], Gaudron and Gummow JJ apparently concurring at [26], with Gleeson CJ and Hayne J at [13] and [16].

This may seek to read too much into the observations at [13] and [16], however, as it is clear from [12] that their Honours were concerned to identify the error in deciding that a term of imprisonment should be imposed and in then concluding that because 'there was no rehabilitation process going on which merited the support of a suspended sentence' there was no reason shown which 'dictated a merciful disposition of the case', ie by suspending the sentence."

13 Section 39(2) of the Act provides a hierarchy of sentencing options from the imposition of a sentence and unconditional release to imprisonment. The second last option in the hierarchy is the imposition of a suspended term of imprisonment: See pars (f) and (h). Paragraph (g) has been omitted by amendment. Section 39(3) provides that:

"A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option."

14 Section 6(4) of the Act applies to both pars (f) and (h) of s 39(2) and provides that:

"A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it."

15 Section 76 provides that:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

(3) Suspended imprisonment is not to be imposed if -

(a) the offence was committed when the offender was subject to an early release order (as defined in Part 13); or

(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended."

16 In Latham v The Queen, supra, at [14] - [18] Parker J also said:

"The power of a sentencing court to order that a term of imprisonment be suspended is thus confined to a sentence of imprisonment of 60 months or less. When more than one sentence of imprisonment is imposed by the court at the same time, however, even if each of the terms is 60 months or less, the terms may not be suspended if their aggregate exceeds 60 months. Section 76(1) seems to require, therefore, that before a court can decide whether it is open to impose suspended imprisonment it must consider the term or aggregate of terms to be imposed and, to do that, by s 76(2) the sentencing court must first consider and determine whether a, and if so what, term or terms of imprisonment would have been appropriate if it were not possible to suspend imprisonment.

The precise terms of the conferral of power to suspend a term of imprisonment in s 76(1) are also consistent with there being two steps in the process. First, the imposition of a sentence of a term of or terms of imprisonment and, secondly, a decision whether or not there should be an order that the term or terms imposed be suspended for a period set by the court.

Thus, in my respectful view, the processes required by the statute are not well adapted to being approached in a precise order by which suspended imprisonment is first considered in isolation, without having regard to the more severe sentence of a term of imprisonment, the latter being considered only if and after the sentencing court has satisfied itself pursuant to s 39(3) that suspended imprisonment is not appropriate.

If this view should be correct it remains fundamentally important, however, that the sentencing court respect the injunction of s 39(3). The court must not impose a term of imprisonment which is not suspended, ie which is to be served immediately, unless satisfied that a sentence of suspended imprisonment is not appropriate.

For the purposes of this application, in my respectful view, what appears to be critical to the adequate exercise of sentencing discretion is whether due regard was had to the stipulation of s 6(4) which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider s 6(4) and s 39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when s 6(4) and s 39(3) are considered but, that they be properly considered."

In my opinion, these observations are entirely correct.

17 It is only if satisfied that a suspended term of imprisonment would not be appropriate may the Judge impose a term of imprisonment which is to take effect immediately: Dinsdale, supra, at [12] per Gleeson CJ and Hayne J. In Dinsdale the Court of Criminal Appeal had dealt first with the length of the term of suspended imprisonment which the trial Judge had fixed and then turned to the question whether an order for suspension of the imprisonment should have been made. In that regard Gleeson CJ and Hayne J said at [12] - [15]:

"In considering the present matter, the Court of Criminal Appeal dealt first with the length of the term of suspended imprisonment which the trial judge had fixed in relation to the offence of digital penetration and only then turned to consider whether an order for suspension of imprisonment would be appropriate. In that regard, the Court said that:

'The question then is whether the case is of a type which, notwithstanding [the] conclusion [that imprisonment is required], makes it appropriate in mercy, to aid a process of rehabilitation, or otherwise for good and sufficient reason, to order the suspension of service of the term.'

The Court concluded that the offences committed by the appellant 'were rightly found to be of sufficient seriousness to require the punishment of imprisonment to be imposed', but concluded that because 'there was no rehabilitation process going on which merited the support of a suspended sentence' there was no reason shown which 'dictated a merciful disposition of the case'.

This inverts the order in which the statute requires a sentencing judge to consider matters. The sentencing judge must first decide the kind of punishment to be imposed. In this case that was understood as requiring a choice between imposing a term of suspended imprisonment and imposing imprisonment which the appellant would have to serve immediately. Only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately. The Court of Criminal Appeal considered how long a period of incarceration (immediate or suspended) the appellant's conduct warranted and then searched for reason 'in mercy' to suspend that term. This is not what s 39(3) of the Act required. Nor was it required by either s 6(4) or s 76(2) of the Act. Section 6(4) provides:

'A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.'

Section 76(2) provides:

'Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.'

Sections 6(4) and 39(3) reflect the principle of sentencing that imprisonment is a punishment of last resort. Section 76(2) also reflects that principle, and the related consideration that committing a further offence during the period of suspension should not produce an unintended consequence.

No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."

18 With the greatest possible respect to their Honours, this approach does not appear to give full force and effect to s 76(2) of the Sentencing Act. That provision makes it clear that suspended imprisonment cannot be imposed "unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances". In the context, if one first assumes that it were not possible to suspend and a term of imprisonment would otherwise be appropriate for a particular offence, one cannot impose a suspended term of imprisonment. This appears to be accepted by their Honours in par [15].

19 Kirby J (with whom Gaudron and Gummow JJ agreed) referred to s 6 and s 78 and, in particular, s 6(i) and (f) and at [54] - [56] noted that, first, the sentence of imprisonment was the sentence of last resort, preceded by the power to suspend imprisonment as the second last option. His Honour set out the provisions of s 76 in par [55] but did not attempt an analysis of them and, in particular, how s 76(2) impacted upon the provision in s 39(2)(h) which embodies the principle that imprisonment is the sentence of last resort. In par [76] - [78] Kirby J said:

"Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.

In Western Australia, the 'starting point' for judicial analysis concerning the availability and suitability of a suspended sentence of imprisonment is the language of s 39(2) and s 76 of the Act. From s 39(2)(f) can be deduced the purpose of Parliament to afford 'suspended imprisonment' as an option to be available in an appropriate case. It is there treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of a term of imprisonment to be immediately served. It is to be read with the injunction in s 6(4) restraining the imposition of a sentence of imprisonment and confining it to the punishment of last resort.

From s 76, it may be inferred that suspension of imprisonment is only to be available where, first, the court has concluded that sentence to a term of imprisonment is warranted and where the court imposes that sentence. Moreover, by s 76(1), it is not to be available where the term of imprisonment imposed, in aggregate terms, is more than five years. Within such limitations, the discretion apparently conferred on the court is expressed in very wide language. By s 76(1), a court 'may order' suspended imprisonment. By s 76(2), it may not do so unless imprisonment for the term or terms equal to that suspended would, if it were not possible to suspend the sentence, be appropriate 'in all the circumstances'. Plainly, s 76(2) is designed to restrain the imposition of an artificial term of imprisonment, inflated with the object of giving an appearance of severe punishment although it is expected that this will not actually be carried into effect."

20 With great respect, insofar as there is any inconsistency between the approach adopted by Kirby J, with the agreement of Gaudron and Gummow JJ, on the one hand, and that of Gleeson CJ and Hayne J, on the other hand, the approach adopted by the majority is that which is binding on this Court, and is the approach which this Court is required to follow.

21 Kirby J also made clear at [84] - [85] that the same considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. This involves consideration of the circumstances of the offence as well as of the offender. As s 76(2) makes clear, in considering whether the sentence of imprisonment which would otherwise be imposed should be suspended, the court is required to reconsider "all the circumstances". As his Honour put it:

"This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment."

See R v Liddington (1997) 18 WAR 394 at 402 per Ipp J; R v Shaharuddin [1999] WASCA 229; and Van de Worp v R [2000] WASCA 154.

22 Finally, in Dinsdale at [88], Kirby J made it clear that it is appropriate to consider all the circumstances and information available, including the nature of the particular offence, the low likelihood of the appellant's re-offending, the impact which a prison sentence immediately to be served would have on the appellant, the "social stigma" which necessarily followed the conviction, quite apart from the prison term and, I would add, the appellant's previous good character.

23 On an appeal, once an error of sentencing principle has been identified, the sentencing discretion falls to be exercised afresh: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 per Dixon, Evatt and McTiernan JJ.

24 In Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992, Owen J (with whom Malcolm CJ and Ipp J agreed) said at 14 in respect of the offence of committing grievous bodily harm under s 297 of the Code:

"There is no tariff for this offence and neither, in my opinion, should there be. The facts relevant to any particular act of grievous bodily harm will be pivotal in reaching a decision as to the relative seriousness of the crime. For these reasons, reference to other sentences and other cases will be of limited utility."

That was a case in which, following an altercation between the complainant, the offender and his co-accused in the parking area of some units where the three resided, the complainant and his family were together in their unit. They heard a crash. Windows in their unit started breaking and a brick came through a window. Some people tried to gain entry. The complainant went outside to see what was going on. He was knocked to the ground and assaulted by three men hitting him with sticks and kicking him in the head and ribs while he was lying on the ground. One witness described how she had seen the offender strike the complainant more than once with full force with two hands as if he were chopping wood. Two witnesses described how they had seen the complainant come out of his unit with a stick or bar and aim a blow at the offender and his co-accused. One witness described the offender's reaction as to "hammer hell out of the old man's head" with a bar or long stick. Another witness described how she saw the offender "belting" the complainant with a lump of wood, "like he was chopping wood or something". The complainant suffered serious injuries and was taken to hospital by ambulance. He had lacerations to the left side of his face, marked swelling of the cheek and the bone cavity around the eye, which was found to have been fractured with considerable depression of the lateral fragment and other fractures in the same region. He was discharged from hospital the following morning and re-admitted one week later for plastic surgery to repair the damage to the area. He subsequently had a number of operations to lift out the depression in the side of his face. He suffered from double vision and, at the time of trial, the prognosis was that he could suffer permanent damage to vision in the left eye.

25 The offender in that case had many prior convictions for violence and had breached his parole on previous occasions. In imposing a sentence of 5 years, the learned sentencing Judge made reference to three matters: the vicious nature of the attack and the use of a weapon, the extent of the injuries to the complainant and the lack of remorse demonstrated by the offender. This was a sentence which the Court of Criminal Appeal regarded as influenced greatly by the inherent seriousness of the circumstances of the offence against the background of the events leading up to the assault.

26 After a review of recent authorities, Owen J said at 15:

"In my opinion it is quite impossible to extract from these authorities anything resembling a tariff. Each case depends on its own particular circumstances. The most that can be said is that a sentence in the range of 3 to 5 years is not inconsistent with the standards of sentencing customarily observed for the crime of unlawfully doing grievous bodily harm."

27 In the result, the sentence in that case was reduced to a sentence of imprisonment for 4 years.

28 In the present case, the appellant was aged 20 at the date of the offence, not 23 as observed by the learned Judge, although he was aged 22 at the time of sentencing. He had no prior conviction for any offence of personal violence. There was evidence that he was of previous good character, conduct and personal qualities. In these circumstances there was a significant degree of social stigma and other consequences which would follow from the conviction, apart from the imposition of a prison sentence. There was a low likelihood of the appellant re-offending and the prognosis for the complainant was that, subject to minor cosmetic surgery, he would not be left with any residual disability.

29 In my opinion, the sentencing remarks of the learned Judge, combined with the severity of the sentence imposed, indicate that insufficient weight was given to the relevant mitigating factors.

30 It was also submitted that the circumstances of the offence themselves demonstrated that it was out of character and that there was little likelihood of the appellant re-offending. Mr Parin, who gave evidence for the prosecution, was in a group close to the appellant who was having an argument face to face with the complainant. There was a lot of swearing. The complainant was bigger than the appellant and he was more solid and taller. The argument went on for about 20 seconds when the complainant head-butted the appellant directly in his face. At that point, Mr Parin was to the side of the complainant and the appellant who were directly facing each other. He was about an arm's length away.

31 Counsel for the prosecution sought to clarify this evidence, as appears from the following passage:

"When you say a head-butt, can you tell the jury what you mean by a head-butt?---It was a direct head-butt to the head.

You've made a movement. You've actually leant back and you've leant forward. Is that right?---It was very very quick. It was a direct bang like that.

I just have to describe things because we get it all typed out. So we won't actually see what you're doing?---All right.

So he didn't lean back, did he?---No, I'd say there wasn't much of a lean back, it was a direct - - -

There wasn't much of a lean back so would - - -?---It was a forward action.

A forward action?---It was from standing straight.

And you've bent over some distance. Is that right?---Did I?

No, no, in describing it you've leaned forward. How much of a lean did this guy have to execute to connect with your friend?---Not much at all. It's all in the neck movement basically with the head-butt. It was from a standing position with his head straight to - - -

All right. What happened after that? What did [the appellant] do?---[The appellant] straight away swung with his right arm."

32 Mr Parin did not see if he was holding anything but saw him hit the complainant on the left side of his face. He then noticed blood on the left side of the complainant's face. The complainant did not go down, he stood straight back up to the appellant. Mr Parin was surprised that the complainant hit back at the appellant straight away. Various people then intervened and broke up the fight.

33 Immediately afterwards Mr Parin noticed that the appellant had blood on his face from what appeared to be a cut under his left eye and his hand was also cut. He then went with the appellant to the toilets where the appellant washed his face and hand.

34 When cross-examined, Mr Parin repeated that there was some arguing and swearing for about 20 seconds. The cross-examination then continued as follows:

"And is it your evidence that at that point, out of nowhere there was an apparent head-butt by the other person onto [the appellant's] face?---That's right.

And you're sure of that?---I'm 100 per cent positive on that.

You're not making that up?---No, I'm not making that up. I know what I saw on the night and that's exactly what I saw.

This is your friend. You're not making it up to get him off the hook?---I wouldn't dare do such a thing. I'm here to tell the truth and exactly what I saw and that's what I saw.

And is that what you told the police on the night when you made a statement?---That's exactly right.

The first statement here signed by you on 16 July - this is when you went in and signed the typed statement?---Yes.

Had you made an earlier statement to police prior to this one?---No, that was my only statement.

And did you at all times tell the truth when you made this statement to police?---Yes, I did.

And did you mention the head-butt in your statement to police?---Yes, I did.

Thank you. After you saw - you were about an arm's length away to the side, looking directly - - -?---That's right.

- - - at the two of them?---That's right.

And you say that there was a movement - when you say head-butt - there was little back movement by the other fellow but fast forward movement. Is that what you're saying?---That's right.

And you're saying the head-butt came with a lot of neck flexion on his part?---It was - it was a distinct hard head-butt to the head.

And did it strike my client in the face?---That's right; directly in the face.

And I think later on you saw that [the appellant] had a cut under his left eye?---That's right.

The head-butt, was it in the vicinity of his left eye?---Yes, it was."

35 Later, the blow delivered by the appellant was described by Mr Parin as "Instantaneous" and "immediate". However, while the issue of accident was raised, this was clearly rejected by the verdict of the jury.

36 The evidence of Mr Parin together with other evidence by Mr Toms, who noticed shortly after the incident that the appellant had a cut on his hand and a graze on his cheekbone which was bleeding, was relevant. Mr Toms actually cleaned up the appellant's face in the toilets while the others were cleaning the appellant's hand.

37 The background to the incident was that the appellant was having a drink with some of his friends and was with a female companion. The appellant had a glass of beer in his hand. The complainant was pushing his way through the crowd and spilled alcohol over both the appellant and his companion. There was a verbal altercation during which the complainant head-butted the appellant who then struck out with both hands. The glass which caused the injury to the eye of the complainant was in one hand. The next thing was that the complainant grabbed the appellant in a headlock. The two were separated and the appellant left the scene to attend to his wounds and to avoid further attack, so counsel for the appellant contended.

38 As has been seen, the learned Judge, in imposing sentence on 2 March 2001, referred to the evidence of Ms Cook who was the female companion of the appellant. She did not see the glass thrust into the complainant's face. The next thing she saw was some punching and wrestling. His Honour then referred to the evidence of Ms Cloghan who saw the appellant punch the complainant and that the complainant then held the appellant in a headlock. His Honour then noted that neither of these witnesses could say that the complainant did not head-butt the appellant and the complainant supported the appellant's evidence that he was head-butted. His Honour then said:

"... it is for that reason that I am not prepared to make a finding beyond a reasonable doubt that you were not head-butted, but the movement described by Mr Parin was a slight inclination of the head forward. You were only inches apart and there was simply a forward neck action by [the complainant]. The head-butt was, as I have already said, an insignificant one.

You then swung your right arm, holding the glass."

39 In my opinion, the finding made by the learned Judge that the head-butt was "insignificant" was against the evidence and, in particular, against the evidence of Mr Parin, whose evidence appears to have been accepted in all other respects. At the time of the incident, Mr Parin had just arrived from work to join his friends and had not previously been drinking. Mr Toms' evidence was not challenged in cross-examination. His evidence corroborated the evidence of Mr Parin and the appellant's own evidence at the trial.

40 In his own evidence, the complainant denied that he had head-butted the appellant.

41 It was also contended that the learned Judge was in error in finding that there was no independent evidence of remorse by the appellant. While that was strictly true, the appellant did express remorse to the court for his actions through his counsel. The learned Judge also had before him a letter from the appellant's father who said:

"Leon's remorse is considerable. Leon was willing to explain his version to police when he found out the seriousness of the incident through police calling at home. He was not at home at the time the police called but when he did come home he phoned a friend, a policeman, who said he should seek legal advice before meeting with the police.

He did so and when his version was explained to the lawyer he was advised to meet with the police but say nothing. He did exactly as instructed.

Over the next few weeks and indeed over the next 20 months he enquired several times of the condition of the complainant's eye and was genuinely caring about any permanent damage. He expressed to his family and friends on many occasions that there was no intent to cause such harm and he was adamant that it was purely an instinctive action and if the headbutt hadn't occurred he wouldn't have swung the blow. Certainly in no way would he ever consider using a glass as a weapon or any other weapon for that matter.

On the question of apparent evasion after the incident, once the incident occurred very, very quickly Leon was grabbed in a headlock and his only thoughts then was to avoid further involvement with the complainant, bouncers etc. He was aided by Mr Gonzales to free him from the headlock but he did not run out of the club.

He moved straight into the adjacent male toilets where he could easily have been located or apprehended. Here he attended the cut on his hand and having done so he moved back into the club, he met with Mr Huezo and the two then walked straight out the front entrance in full view of everyone. He did not attempt to hide or skulk out of a rear exit.

At this stage the complainant had been taken away by security staff ..."

42 The appellant's manager at the Rendezvous Observation City Hotel expressed his surprise about the alleged incident, as any aggression or anger in his experience with the appellant was completely out of character. In a reference tendered to the learned Judge the manager said that the appellant had:

"... time management skills that are second to none, he has the ability to concentrate on multiple tasks and ensures the right outcomes are achieved. His ability to work unsupervised in a strenuous management position has been a credit to him and has made those who work under him respect him and admire his strong work ethic.

[The appellant's] honesty and strong work ethic has led him to become an integral part of In-Room Dining, his position forms the backbone of the outlet. [The appellant's] attention to detail and industry knowledge has enabled him to be promoted Team Leader, a managing position within the Department. [The appellant] has often worked over and above what is expected of him as he always executes a high standard of work, this is a position he very much deserves."

43 A school teacher and neighbour gave a reference to the following effect, having known the appellant for some 15 years:

"[The appellant] has always shown me the utmost courtesy and respect, and greets me in a friendly manner whenever we meet in the local neighbourhood. As a widow, I have been able to rely on [the appellant] to be willing to help me with odd jobs around the house when needed.

As I have observed [the appellant] growing up in a loving, Christian family, I have seen him develop into a delightful young gentleman. I am aware of the difficult situation that he is now confronted with, and I believe that every opportunity should be given to understand his unintended actions. [The appellant] has a bright future ahead of him and should be given the chance to demonstrate his worth to the community."

A number of other references substantially to the same effect were provided.

44 In my opinion, given the material before him, the learned Judge was in error in finding an absence of remorse on the part of the appellant and that he had fled the scene of the incident when he knew of the seriousness of the injuries to the complainant. There was in fact no evidence that the appellant knew of the seriousness of the injury. It is apparent from the evidence that the appellant left the scene of the incident as he was afraid of further attack and needed to treat his own injuries.

45 In my opinion, this was a case in which the appellant reacted instinctively to a head-butt committed on him by the complainant. In the result, the prognosis for the victim was that the worst outcome for the complainant, if he followed through the surgery recommended, would be some minor scarring.

46 Counsel for the Crown contended that the so-called social stigma that would follow the conviction and imposition of a sentence was a matter to which little or no weight should attach when dealing with crimes of wanton violence: Ryan v The Queen [2001] HCA 21 per McHugh J who said at [25] that:

"... if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances."

47 In my opinion, given that the evidence before the learned sentencing Judge was all one way in support of the appellant's previous good character, the learned Judge was bound to take it into account as a mitigating factor.

48 I note that the evidence of Mr Boland, who was a crowd controller at the time, supported the finding of the learned trial Judge that there was an insignificant head-butt. He described the action as "slight" [see T69].

"... submitted that I should consider, if a custodial sentence is the only appropriate disposition, the suspending of that sentence. That matters personal to an offender in relation to serious crimes should not prevail over the need to impress upon the community the gravity of such offending."

50 In my opinion, his Honour in this passage was virtually ruling out the availability of a suspended sentence for the offence of grievous bodily harm, at least in these particular circumstances, because of what he regarded was the seriousness of the offence. In my opinion, this was an error in principle. It has been accepted in a number of cases that the circumstances may be appropriate for the imposition of a suspended sentence, even in the case of armed robbery, for example. In my opinion, it was not appropriate in this case to attach to the actions of the appellant the same degree of criminal responsibility as a person who deliberately shoved a glass directly into the face of another person. While it could not be characterised as an automatic reaction, it was in the nature of an instinctive reaction and, to that extent, somewhat understandable. This was a case in which grievous bodily harm was caused by a man who did not have any precise intent as was accepted by the Crown. While in Ryan v The Queen, supra, his Honour considered that whether or not public opprobrium will attach to an offence and, if so, to what extent, will depend upon the individual, his or her position and reputation in society, whether and when the offender will return to the community where the offence occurred and the nature of publicity, if any, that the conviction receives, his Honour was not convinced that public opprobrium was to be treated as an equivalent to the loss of a job or similar personal or financial loss: Ryan v The Queen, supra, at [52] - [54].

51 In all of the circumstances, I consider that in the particular circumstances of this case, and, having specific regard to the appellant's previous good character and the circumstances under which the offence was committed, the sentence imposed of imprisonment for 3 years to be immediately served was manifestly excessive. It is for these reasons that I joined in making the order that, while the sentence itself should remain, there should be an order suspending the sentence for a period of one year.

52 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ. There is nothing I wish to add.

53 TEMPLEMAN J: At the conclusion of the appeal on 15 June 2001, I was of the view that the discretion exercised by the learned District Court Judge in sentencing the appellant had miscarried and that it was therefore necessary to exercise that discretion afresh.

54 I was also of the view that although a sentence of 3 years imprisonment was appropriate, the sentence should be varied by suspending the term of imprisonment for a period of 1 year.

55 My reasons for joining in the unanimous decision of the Court to that effect have been articulated by the Chief Justice in his reasons, which I have had the advantage of reading in draft, and with which I agree.