Criminal law - Appeal against sentence - Unlawfully doing an act as a result of which bodily harm is caused to a person - Where offender beat the victim with a hose length at the victim's house in a vigilante response to the victim damaging property - Partly suspended sentence of 3 years' imprisonment, with offender to be released after serving 1 year - Where sentence backdated - Whether open to backdate the commencement of a partly suspended sentence - Whether trial judge erred in making factual findings for the purpose of sentencing the offender

Sentencing Act 1995 (WA), s 4(4), s 39, s 76, s 77, s 80

Anderson v The State of Western Australia [No 3] [2014] WASCA 190

Bolton v The State of Western Australia [2012] WASCA 2

Chikonga v The State of Western Australia [2017] WASCA 34

Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425

Colbung v The State of Western Australia [2013] WASCA 257

DKN v The State of Western Australia [2018] WASCA 87

Grenfell v The State of Western Australia [2018] WASCA 31

Hamid v The Queen [2019] VSCA 5

Harrison v The State of Western Australia [2009] WASCA 58

Kaokula v The State of Western Australia [2016] WASCA 198

Narrier v The State of Western Australia [2011] WASCA 193

R v De Simoni (1981) 147 CLR 383

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175

Roberts v The State of Western Australia [2015] WASCA 239; (2014) 249 A Crim R 154

Rowsell v The State of Western Australia [2015] WASCA 2

SBJ v The State of Western Australia [2019] WASCA 32

Spirovski v The State of Western Australia [2017] WASCA 230

SV v The State of Western Australia [2014] WASCA 123

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Maee [2018] WASCA 53

Wragg v The State of Western Australia [2013] WASCA 198

1. On 26 October 2018, the appellant was convicted after trial in the District Court of Western Australia of one count of unlawfully doing an act as a result of which bodily harm was caused to the complainant. That is an offence contrary to s 304(1)(a) of the Criminal Code (WA), the maximum penalty for which is imprisonment for 7 years. The offence occurred on 25 April 2017 at Onslow. The appellant was acquitted of one count of burglary.
2. On 27 November 2018, the appellant was sentenced to a term of imprisonment of 3 years. The trial judge indicated that the sentence was backdated to 26 October 2018, when the appellant was remanded in custody following conviction. The trial judge also indicated that the sentence would be partly suspended and ordered that the appellant be released after serving 1 year. The effect of the order ultimately made by the trial judge was that the balance of the sentence be suspended for 1 year.
3. The appellant now appeals against his sentence on three grounds, and seeks leave to add a fourth ground of appeal. In our view, the appellant has made out proposed ground 4, to the extent that it alleges that the trial judge erred in backdating the partly suspended sentence of imprisonment.
4. The appeal should be allowed and, taking account of the matters which include that the appellant has now spent nearly 7 months in custody, he should be resentenced to 18 months' imprisonment, conditionally suspended for 12 months with supervision and programme requirements.

Circumstances of offending as found by the trial judge

1. The trial judge made the following findings as to the circumstances of the offence of which the appellant was found guilty.[1]
2. The offending occurred on ANZAC Day, which is also the complainant's birthday. The complainant found the day difficult because of the suicide of his father, who had served in Vietnam. The complainant was 'inclined to drink'.
3. The complainant had been friends with the appellant's stepson. Sometime prior to the date of the offence, the stepson accused the complainant of stealing. The complainant took great offence at that comment.
4. On the morning of 25 April 2017, the complainant attended the stepson's premises in an intoxicated state, knocked on the door and demanded that the stepson come out. The stepson remained inside and called police. The complainant took a pocket knife and damaged the stepson's car, scraping and puncturing it and injuring himself in the process.
5. Police arrested the complainant at the scene. Because he had injured himself in the course of damaging the stepson's car, and was heavily intoxicated, the complainant was taken to Onslow Hospital for treatment. The complainant was discharged later that day and went home.
6. The appellant spent the afternoon of 25 April 2017 at the Onslow RSL club playing two-up. On returning home, the appellant learned that the complainant had not been gaoled as the appellant thought he should have been. The appellant then took it upon himself to mete out punishment.
7. The appellant cut a one metre length of high pressure hose which he had obtained from his work. The appellant cut the hose specifically to use as an offensive weapon to belt the complainant. Armed with the length of hose and a Taser, the appellant attended the complainant's property in Onslow.
8. The complainant was alone in the house at that time. The complainant's wife and child were attending a relative's house for a birthday party for the complainant, which the complainant did not attend due to his intoxicated and distressed state.
9. The complainant heard a noise and went to investigate. The appellant came onto the veranda of the complainant's house and there met the complainant. The appellant was armed with the Taser and the length of hose. The trial judge found (contrary to the appellant's evidence at trial) that the complainant did not come at the appellant with a pair of scissors or pose any threat to the appellant. The complainant heard the Taser ticking and the appellant thrust the Taser at the complainant a couple of times.
10. The appellant then repeatedly struck the complainant with the length of hose, which was folded in half. The complainant raised his arms to defend himself, receiving defensive marks on his arm. The appellant struck the complainant with the hose multiple times on his arms, the back of his head, his back and his legs, and kicked him in the groin. The appellant eventually stopped striking the complainant and left.
11. Police executed a search warrant at the appellant's property on 27 April 2017. The appellant directed police to the Taser which was sitting on a sideboard and the piece of hose which was on a barbeque. In an unrecorded statement, the appellant told police that he went to the complainant's house and 'flogged' the complainant as he was upset at what the complainant did to his stepson's car.[2]
12. The attack on the complainant was a planned vigilante assault, done to inflict serious injury and pain to the complainant and to punish him for what was done to the stepson's car. The trial judge did not accept that the appellant or the appellant's family was fearful of the complainant or in a heightened emotional state. The assault was carefully planned and conducted against a victim who the appellant knew was in an intoxicated and depressed state earlier in the day.
13. The complainant endured stinging, burning pain for some days, and significant and widespread welts and bruises over his body, particularly his back. The complainant also suffered significant physical and mental distress.

Appellant's personal circumstances as found by the trial judge

1. The trial judge made the following findings as to the appellant's personal circumstances.[3]
2. The appellant was born in Kalgoorlie and was 44 years old at the date of sentence. He left school at the age of 16 years, and completed an electrician's apprenticeship with the navy. Since his discharge from the navy, the appellant had been employed at Onslow Salt as a relief electrical coordinator. The appellant was working on a 4 day on, 4 day off roster earning $140,000 a year. He was a well-regarded and very valuable member of Onslow Salt.
3. The appellant had been in a de facto relationship for 9 years prior to the date of sentence. He has a son from that relationship who was 5 years old at the date of sentence, and is stepfather to his partner's other three children.
4. The trial judge noted the appellant's criminal record, which shows a number of mostly road traffic-related offences. All matters were dealt with by fines, other than an offence committed in 2001 of driving under suspension for which the appellant received a sentence of 12 months' imprisonment suspended for 2 years. The appellant has two convictions for common assault. On 1 August 2007, he was fined $1,500 for an assault committed on 10 May 2007. On 11 April 2018, the appellant was fined $1,000 for an assault committed on 8 September 2017 (which was some months after the offending against the complainant whilst the appellant was on bail). Both assaults involved the appellant punching the respective victims after an altercation at the Onslow Sports Club.
5. The trial judge referred to a number of positive references for the appellant, although a number of the referees were not aware of the appellant's prior convictions and did not appreciate the seriousness of the current charge.
6. Subsequent to the appellant's remand in custody on 26 October 2018, the appellant's 15-year-old stepdaughter, who attended boarding school, was admitted to Geraldton Hospital reporting an attempted suicide after taking a large quantity of pain relief medication and two antidepressants. The attempt was impulsive and was not considered life-threatening. It was suggested that the imposition of an immediate term of imprisonment on the appellant would have a devastating effect on the stepdaughter and be more likely to trigger more self-harm or even suicidal reactions.
7. The appellant's partner suffered from an aggressive form of cancer as a child, resulting in the loss of her right eye, permanent hearing loss and facial deformity. The appellant's partner also suffered from a debilitating chronic migraine resulting from childhood radiotherapy, which was being treated. Stress could jeopardise the achievements gained through her ongoing chronic pain specialist treatment. Commonly with many childhood cancer survivors, she also suffers from post-traumatic stress disorder. The appellant's partner also suffers from severe anxiety disorder, symptoms of which led to her hospitalisation in November 2018. It was suggested that if the level of stress continues the prognosis of her anxiety disorder is poor and a depressive disorder will be likely, in the context where she is caring for a young child.
8. However, references and other material indicated that the appellant and his family enjoyed considerable family and community support in Onslow. The appellant's partner enjoyed the support of her mother and other family members in Onslow and his family is 'able to manage matters without' the appellant.[4]
9. The appellant had not demonstrated any significant remorse for his offending. Any late suggestion of remorse following his conviction and remand in custody was due to the appellant's concern for and realisation of the impact of his offending on his family.
10. The appellant had recognised the need to avoid the ingestion of alcohol and the extent to which it has played a role in both his past and current offending.

1. The appellant appeals against his sentence on three grounds.
2. Ground 1 contends that the trial judge made a number of errors in relation to the facts which his Honour found.
3. Ground 2 contends that the trial judge erred in determining that there was a substantial need for general deterrence, and in particular that there was a need to deter the Onslow community from sympathising with the appellant and being unsympathetic towards the complainant.
4. Ground 3 contends that the partly suspended term of imprisonment was manifestly excessive. The particulars to that ground indicate that the imposition of a sentence 'comprised of an immediate imprisonment component was excessive having regard to the exceptional hardship which an immediate term of imprisonment would occasion to [the appellant's] family'.
5. At the hearing of the appeal, the appellant sought leave to amend his grounds of appeal to introduce the following proposed fourth ground of appeal:

The learned sentencing judge erred in structuring the sentence in an impermissible way namely:

(a) backdating a partly suspended sentence contrary to SBJ v The State of Western Australia [2019] WASCA 32; and

(b) giving contradictory expressions of when the period of suspension should commence.

Pursuant to orders made at the hearing, on 8 May 2019 the appellant filed an application in the appeal seeking leave to amend his grounds of appeal to add this new ground.[5] The respondent did not oppose the addition of that ground, and conceded that it was established.[6] In our view, it is in the interests of justice for the appellant to be granted leave to amend his grounds to add the proposed ground 4.

1. It is convenient to begin by dealing with the challenges to the trial judge's factual findings raised by ground 1, and then deal with ground 4, before turning to grounds 2 and 3.

Whether the hose was cut for the purpose of assaulting the complainant

1. The appellant contends that the trial judge erred in finding that the appellant deliberately cut the length of hose for the purpose of giving the complainant a flogging.[7]
2. When the search warrant was executed at the appellant's property, the appellant directed police to a piece of hose resting on a barbeque at the rear of the property. When asked by police what he used the hose for, the appellant said that he used it to 'belt the dog when he stuffs up and that'.[8]
3. The photograph of the hose is exhibit 6. The photograph depicts a blue reinforced hose which has been cut at both ends, resting on top of the hose leading from the barbeque to the gas regulator. Clean white fabric forming part of the reinforcing can be seen at both ends of the blue hose.
4. After the conclusion of the prosecutor's cross-examination of the appellant, the trial judge asked the appellant when he cut the piece of hose off. The appellant indicated that the hose had been there for a long time and was used for disciplining his dog. The prosecutor then asked the appellant why the hose was so clean, and the appellant responded 'because that type of hose always stays clean'.[9] The appellant accepted that the fabric was clean and light where the hose was cut. He said that it had been lying around for months and was used to beat his dog. He denied cutting the hose for the purpose of beating the complainant and said it looked freshly cut because '[t]hat's how that hose is'.[10] In response to further questions from the trial judge, the appellant accepted that the land around Onslow was Pindan clay with red dust going on anything that is otherwise white.[11]
5. The appellant's partner gave evidence that the blue hose was used to break up their dogs when they started fighting, and that she did not know how long the hose had been at their house.[12]
6. In his sentencing remarks, the trial judge rejected the explanation for the presence of the hose given by the appellant and his partner, and found it to be untruthful. The trial judge said:[13]

I don't accept that the weapon was something that you used to strike the family dog, the hose was in pristine condition and had fresh clean-cut ends with the white thread visible.

The condition of the hose is wholly inconsistent with the notion that it'd been cut some time before and had been used for disciplining any animal, particularly in Onslow where red Pindan dust predominates, because it's apparent from other items in the exhibits.

I'm satisfied beyond reasonable doubt on the evidence that the only reasonable inference is that you cut the piece of air hose specifically to use to belt the victim.

1. Later, the trial judge concluded:[14]

You deliberately cut a length of high-pressure hose to use to beat - or to use your description to police, to give [the complainant] a flogging.

1. In our view, it was open to the trial judge to infer from the condition of the cut ends of the hose and the environment in which the hose was located that the hose located by police had been recently cut. It was open to the trial judge to reject the evidence of the appellant and his partner that the hose was used for disciplining the dogs. It was open to the trial judge to infer that, as the hose had been recently cut, it must have been cut for the purpose of assaulting the complainant.
2. In any event, any error of fact in this respect was immaterial. There is no challenge to the finding that the appellant took the hose to the complainant's property for the purpose of giving the complainant a 'flogging'. As the appellant's counsel accepted in submissions made before the trial judge, once the court reaches the conclusion (which counsel described as inescapable) that there was premeditation involving the selection of two weapons then whether or not the hose was 'purpose-built' would not materially affect the criminality involved.[15]

Findings as to the infliction of, and intention to inflict, significant injuries

1. The appellant also seeks to challenge the trial judge's characterisation of the injuries which the complainant sustained, and which he intended to inflict on the complainant, as 'significant'.
2. The bundle of photographs which are exhibit 3 show the injuries sustained by the complainant. Those photographs show a number of prominent red welts which are evidently a result of being 'flogged' by the blue hose.
3. The complainant described the feeling of the impact of the hose on him as 'burning, stinging'.[16] He said that he was 'pretty bruised and sore for a couple of weeks'.[17] In cross-examination, the complainant accepted that he received bruises but no cuts as a result of the assault.[18] There was no medical report describing the complainant's injuries resulting from the assault, or evidence that those injuries required medical attention.
4. The trial judge made the following observations in relation to the complainant's injuries and the appellant's intention:[19]

I'm satisfied you did specifically chose the metre-long length of high-pressure hose and folded it in half. It was a weapon that could, and in fact did, leave the victim with numerous raised welts and considerable bruising from what can only be described as a flogging.

...

You assaulted the victim and you intended to harm him and cause him to suffer pain and discomfort as he did.

...

The victim has described his injuries during the trial as stinging, burning pain that endured for some days. The welts and bruises are significant and widespread over his body, particularly his back. The photographs speak volumes as to the force and severity of the blows.

1. Later, the trial judge observed:[20]

As a result of the nature and seriousness of the bodily harm caused, when I have regard to that as a factor there was significant bruising and welts to the back, chest and arms of the victim which endured for some days. When one has a look at the photographs that were taken the subsequent day and sees some raised welts and the level of bruising the picture speaks a thousand words as to the injury inflicted.

1. The appellant complains of the use of the adjective 'significant' to describe the bruising and welts sustained by the complainant. The appellant was convicted of unlawfully doing an act as a result of which bodily harm was caused to the complainant, contrary to s 304(1) of the Criminal Code. The term 'bodily harm' is defined in s 1(1) of the Criminal Code to mean 'any bodily injury which interferes with health or comfort'. 'Significant' is a relative term. The use of that term in the present case is to be understood in the context of an offence which involves doing bodily harm, rather than wounding or grievous bodily harm. Particularly in that context, we do not accept the appellant's submission that skeletal injury or organ damage is required before a bodily injury can fairly be described as 'significant'. The same observation may be made in relation to descriptions of the injuries sustained as 'serious'.[21]
2. In our view, having examined the photographs, the bruising and welts sustained by the complainant can fairly be described as 'significant', and the trial judge was not bound to find that they were insignificant. In any event, when the trial judge's sentencing remarks are read as a whole, it is clear that his Honour properly appreciated the nature and extent of the injuries sustained by the complainant as a result of the assault by the appellant.
3. The trial judge later described the appellant's intention as being to 'inflict significant injury'.[22] The appellant invites this court to accept that the injuries actually sustained by the complainant were not properly characterised as significant. He contends that there was no basis (such as an admission) for the trial judge to conclude that the appellant intended to inflict injuries of a different nature to those actually sustained by the complainant. The appellant's submissions therefore depend on this court accepting the contention that the injuries in fact sustained were not significant. As that submission as to the proper characterisation of the injuries actually sustained has been rejected, the submission in relation to the finding about the appellant's intention cannot be sustained. Again, these observations apply equally to the description of the intended injury as 'serious'.
4. We note that the appellant should not have been sentenced on the basis that he intended to inflict injuries of the kind sustained by the complainant, for the reasons explained at [107] - [109] below. However, the parties' submissions indicated that this aspect of ground 1 was not directed to this issue.

1. The appellant also contends that the trial judge erred in failing to find that he was genuinely remorseful.
2. Remorse is a mitigating factor which the appellant bears the onus of proving. The absence of remorse is not a matter which the State is required to prove.[23] As McLure P and Newnes JA noted in Rowsell v The State of Western Australia:[24]

The offender bears the onus of establishing remorse on the balance of probabilities. In determining whether an offender is remorseful, a sentencing judge is entitled to have regard to the appellant's conduct as a whole. Remorse, if genuine, will generally be an important consideration in sentencing and a sentencing judge is not bound to take at face value an offender's statement that he or she is remorseful. Nor will a plea of guilty of itself establish remorse although, together with other relevant evidence, it may be a relevant factor in enabling an inference of remorse to be drawn.

1. Further, as Mazza JA noted in Rowsell:[25]

Remorse is not to be equated with sorrow for being caught, an acknowledgement that conviction is inevitable or regret on the offender's part that he or she faces some kind of sanction. Remorse, if it is to be mitigating, at least requires a realisation by the offender that what he or she did was morally wrong and some sign of sorrow for the impact or consequences of the offence.

It is frequently the case that in the course of a plea in mitigation defence counsel will express remorse on the part of an offender. It may be that no issue is taken with it. A sentencer may act on the submission but is not required to accept it. As with any mitigating factor, if remorse is put in issue by the prosecutor or a sentencer indicates he or she may not be prepared to accept it, the offender bears the onus of establishing the fact by evidence on the balance of probabilities.

1. In the present case, the trial judge indicated to counsel during sentencing submissions that he was not minded to accept that the appellant was remorseful.[26] It was therefore necessary for the appellant to adduce or point to evidence which proved, on the balance of probabilities, the existence of his genuine remorse.
2. The only indication of remorse was statements attributed to the appellant in the pre-sentence report to the effect that:

(1) The appellant was accepting of the verdict and conceded that he could have resolved his conflict with the complainant in a non-violent manner; and

(2) The appellant expressed shame about his behaviour towards the complainant, and accepted that his actions towards the complainant were 'excessive and in hindsight unjustified'.

1. However, the trial judge was not bound to accept these statements to the author of the pre-sentence report in circumstances where the appellant had pleaded not guilty to the charge and there was no indication of remorse in the evidence which the appellant gave at trial. There was no statement by the appellant on oath that he was genuinely remorseful. In these circumstances, it was open to the trial judge to fail to be satisfied that the appellant was remorseful.

Findings as to impact of the appellant's incarceration on his family

1. The appellant challenges the following finding by the trial judge:[27]

I do note, however, that from the references and other material you and your family enjoy considerable family and community support in the Onslow community. You have been supportive of all members of the community and there's no doubt that they would reciprocate. Your wife enjoys the support of her mother and other family members within Onslow and clearly are able to manage matters without you.

1. The appellant submits that the trial judge dismissed all of the financial and pragmatic contributions of the appellant, which are lost with his incarceration, with the speculative notion that his partner's family could and would fill the void. The appellant submits that the trial judge acted upon speculation and conjecture in 'sweeping to one side a very significant and exceptional matter in mitigation which justified the imposition of a different type of sentence'.[28]
2. The legal principles as to the significance of family hardship resulting from an offender's incarceration as a sentencing consideration were summarised by Mazza JA, with whom Hall J agreed, in Anderson v The State of Western Australia:[29]

The general principle is that hardship to an offender's family is not a mitigating circumstance. Imprisonment will, more often than not, cause hardship, sometimes serious hardship, to others. If hardship to others was routinely regarded as a mitigating factor, it would have a tendency to undermine the primary objective of sentencing, which is to impose a sentence commensurate with the seriousness of the offence. Moreover, to treat an offender who has dependents more leniently than one who does not has the tendency to defeat the appearance of justice and be patently unjust.

However, there are exceptional cases where family hardship may be mitigating. The threshold of exceptional circumstances is self-evidently very high. It has been said that it is 'extraordinarily difficult to satisfy'. ... The circumstances of hardship must be so exceptional that 'it would be, in effect, inhuman to refuse to [afford leniency]'. It cannot be overlooked that in all cases in which it is submitted that exceptional circumstances apply, the gravity of the offence must be considered. The more serious the offence, the less capacity the court has to mitigate punishment having regard to hardship to an offender's family.

(citations omitted)

1. The following observations made by Mazza JA by reference to the facts in Anderson are also apposite in the present case:[30]

The fact that the appellant's wife and stepdaughter will be deprived of his income is a far from exceptional consequence when the breadwinner of a family is incarcerated. The appellant's inability to care for his wife and stepdaughter is also a common consequence of imprisonment. Those innocent family members who require care may have to rely on others for assistance. Sometimes that care will be far from ideal, but this does no amount to an exceptional circumstance.

The argument mounted by the appellant before the primary judge was, in effect, that his wife had high care needs and that no one else, apart from him, could provide that level of care. The onus on an offender who makes this claim is high, having regard to the threshold of exceptional circumstances. An offender will ordinarily be required to demonstrate that all reasonable alternative avenues have been explored and exhausted.

1. In the present case, the appellant was the family's main source of income and support. His employment with Onslow Salt provided him with a significant income, accommodation in Onslow, payment of health insurance and boarding fees. However, the loss of the appellant's income during any period of incarceration was an ordinary consequence of imprisonment. The emotional stress of his incarceration on remand had a significant psychological impact on his partner and stepdaughter. However, their medical conditions were not so severe as to make them wholly dependent on the support of others. The evidence before the trial judge did not demonstrate that only the appellant could provide the support which they required. The mother and brother of the appellant's partner lived in Onslow, and references indicated that he had the support of members of the Onslow community. This material provided a proper factual foundation for the trial judge's conclusion as to the availability of family and community support.
2. It may be noted that, despite this conclusion, the trial judge did have regard to the impact of the appellant's incarceration on his family as a significant sentencing consideration. After a detailed discussion of the impacts on the appellant's partner and stepdaughter, the trial judge observed:[31]

The consequences of a term of imprisonment on you and your family and the family unit is important and had regard by me. It's a factor that has weighed heavily in the ultimate sentencing consideration and the manner in which I've resolved to deal with this matter in the exercise of my discretion as a sentencing judge.

1. The trial judge also concluded that the impact of the appellant's offending on his family meant that he was unlikely to offend again, lessening the significance of personal deterrence as a sentencing consideration.[32]
2. The trial judge did not find that the availability of family support prevented any hardship from arising if the appellant were to be incarcerated. Nor did the trial judge find that the availability of support was a reason to ignore that hardship as a sentencing factor.

1. For the above reasons, none of the challenges to the trial judge's findings of fact are established. We would refuse leave to appeal on ground 1 which, in our view, has no reasonable prospects of success.

Structure of the partly suspended sentence Statutory provisions

1. Section 39 of the Sentencing Act 1995 (WA) provides for the sentencing options for an offender who is a natural person. Subject to presently immaterial exceptions, s 39(2)(f) provides that a court sentencing an offender may under Part 11 impose suspended imprisonment and order the release of the offender.
2. Section 76(1), in pt 11, of the Sentencing Act relevantly provides that:

A court that sentences an offender to a term of imprisonment ... of 60 months or less may order that the term ... be suspended for a period set by the court; but not more than 24 months.

1. Section 4(4) of the Sentencing Act relevantly provides:

In this Act a reference to the suspension of a term ... of imprisonment is a reference to a suspension of -

(a) the whole of the term ... ; or

(b) part of the term ...

1. Section 77 of the Sentencing Act relevantly provides:

(1) An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless -

(a) during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment; and

(b) a court makes an order under section 80.

(2) The suspension period begins on the day on which the sentence is imposed.

...

(4) An offender who is sentenced to suspended imprisonment is to be taken to be discharged from the sentence at the end of the suspension period.

1. Section 80 provides for the manner in which the court may deal with a person who commits an offence punishable by imprisonment 'during the suspension period of suspended imprisonment' imposed on that person.

Backdating a partly suspended sentence of imprisonment

1. These provisions were recently considered by this court in SBJ v The State of Western Australia.[33] The court held that these provisions authorise a sentencing court to order that a term of imprisonment be partly suspended. The court may impose a sentence of imprisonment and order the release of the offender at the expiry of the component of the term that is to be immediately served.[34] The 'suspension period' is the period set by the court under s 76(1) for which the term of imprisonment is suspended.[35]
2. As noted above, s 77(2) of the Sentencing Act provides that the 'suspension period begins on the day on which the sentence is imposed'. The court in SBJ noted two alternative approaches in relation to s 77(2) of the Sentencing Act:

(1) On one possible construction, a suspended term of imprisonment is 'imposed' within the meaning of s 77(2) on the day on which the suspended component of the partly suspended sentence takes effect.[36]

(2) Alternatively, if that is not the meaning of the term 'imposed', then s 77(2) cannot, and need not, operate in accordance with its terms in relation to a partly suspended term of imprisonment. Rather, a partly suspended imprisonment order will, by its nature, identify the day on which the suspension period begins.[37]

The court held that, on either approach, a partly suspended imprisonment order begins on the day on which the suspended term of imprisonment takes effect, namely immediately following the completion of the immediate component of the term.[38]

1. The court in SBJ also held that pt 13 of the Sentencing Act does not apply to a partly suspended term of imprisonment, and that there is no power to backdate the commencement of partly suspended imprisonment or to make a parole eligibility order.[39] In SBJ, the sentencing judge was held to have erred by backdating a partly suspended term of imprisonment. This required the court to resentence the offender in that case.
2. In the present case, the appellant was sentenced prior to the publication of the decision of the court in SBJ. While that may make the trial judge's decision to backdate the sentence more understandable, the decision to backdate remains an error on the approach adopted in SBJ. We adopt that approach. It follows that the sentence imposed by the trial judge on the appellant did not accord with the Sentencing Act and involved a material express error of law. It also necessarily follows that a different sentence (ie a sentence not backdated to 26 October 2018) should have been imposed.[40]
3. Ground 4 is made out so far as it contends that the trial judge erred in backdating the partly suspended sentence of imprisonment.

1. The trial judge appears, in his sentencing remarks, to have misapprehended the time at which the suspension period of the suspended sentence which he imposed would commence. In imposing the sentence, the trial judge said:[41]

I consider it in your interests and the community's interests that you be released after you've served one year of the required term in custody and the balance of two years thereafter be suspended for one year upon your release; that is to say, suspended two years from today.

...

Mr Evans, just to confirm the sentence, you've been sentenced to a term of imprisonment of three years. It's backdated to 26 October and after you've served one year you will then be released. The balance of two years is suspended for two years from today.

(emphasis added)

1. The emphasised portions of the above observations appear to indicate that the trial judge apprehended that the suspension period began on the date he imposed the sentence rather than upon the completion of the component of the term of imprisonment that was to be immediately served. However, the Certificate of Final Outcome, which is the formal record of the court,[42] indicates that the following sentence was imposed:

Partially Suspended Imprisonment

Term Imposed : 3 Years

To Be Released After Serving : 1 Year

Imprisonment Term Suspended : 2 Years

Suspended Term : 1 Year

Start Date : 26 October 2018

1. The Warrant of Commitment and Suspended Imprisonment Order provide that the appellant is to be released after serving 1 year, with the balance of 2 years suspended for a period of 1 year.
2. While the sentencing remarks quoted at [77] above appear to reflect an understanding of the point at which the suspension period commences which is at odds with the decision in SBJ, the formal orders may not. The formal record differs from the comments made in the transcript, at least to the extent that the suspension period of 2 years referred to in the transcript was reduced to 1 year in the formal record. Given the conclusion we have reached in relation to backdating, it is unnecessary to address the aspect of ground 4 dealing with the suspension period any further.

1. Given the above conclusions, it is also unnecessary to determine grounds 2 and 3.

1. It having been concluded that the trial judge erred in backdating the sentence and that a different sentence ought to have been imposed, this court (which has the necessary material) must now set aside the sentence imposed by the trial judge and resentence the appellant.

Maximum penalty and customary sentencing standards

1. The maximum penalty for the offence of which the appellant was convicted under s 304(1) of the Criminal Code is 7 years' imprisonment. This may be contrasted with the maximum penalty of 5 years' imprisonment available on a charge of assault causing bodily harm, absent circumstances of aggravation, under s 317 of the Criminal Code.
2. There are only a few cases where this court has considered sentences imposed under s 304(1) of the Criminal Code.
3. In The State of Western Australia v Maee,[43] one of the offenders, who was 32 years old at the time of sentence at first instance, received a sentence of 1 year's immediate imprisonment for an offence against s 304(1), on a plea of guilty. The offence involved driving a vehicle into another vehicle, without causing any injury, in order to prevent the victims in that other vehicle escaping.[44] This individual sentence was not interfered with when this court resentenced the offender to a total effective sentence of 8 years 6 months' imprisonment.
4. In Narrier v The State of Western Australia,[45] the 22-year-old offender with a long criminal history was convicted after trial of one count of stealing a motor vehicle and driving it recklessly and two offences against s 304(1) of the Criminal Code. The s 304(1) offences involved driving at and colliding with a police car during efforts to escape. The sentencing judge imposed sentences of 12 months' immediate imprisonment (reduced for totality) on each of the two s 304(1) counts. The total effective sentence was 4 years' immediate imprisonment. Leave to appeal on grounds which included that the individual sentences for the s 304(1) offences were manifestly excessive, was refused.
5. In Bolton v The State of Western Australia,[46] the mature offender was convicted after trial of an offence against s 304(1) of the Criminal Code, involving the firing of a shotgun at a car being driven away from him. He was also convicted of offences under s 294(1) of the Criminal Code, where two persons were shot and seriously injured. The offending occurred in the context of a brawl between members of feuding families. The offender was sentenced to 1 year 3 months' immediate imprisonment (reduced from 2 years 6 months for totality) as part of a total effective sentence of 6 years 3 months' imprisonment. Leave to appeal was refused.
6. In Colbung v The State of Western Australia,[47] the offender was sentenced to 2 years 9 months' immediate imprisonment, on a plea of guilty, in respect of one offence against s 304(1) of the Criminal Code. The offending conduct involved driving a stolen motor vehicle in a dangerous manner during a high speed chase, in which no-one was injured. The sentence formed part of a total effective sentence of 7 years 6 months' imprisonment, and leave to appeal (relevantly on totality grounds) was refused.
7. In Roberts v The State of Western Australia,[48] the 34-year-old offender was convicted on his plea of guilty at the first reasonable opportunity of five counts of making an explosive device and two offences against s 304(1) of the Criminal Code. The offender had manufactured packages of an explosive substance which he intended to detonate in remote locations. Two of the packages had been thrown into an estuary and been left when the offender was unable to detonate them. The offender, who had no relevant criminal record, incorrectly believed the packages were not a danger immersed in water. One of the packages was snagged by a fisherman, and a police officer subsequently suffered some injury when examining the package. The second was discovered following a search of the estuary by police and navy divers, and safely disposed of. The leaving of these two packages constituted the offending against s 304(1) of the Criminal Code. At first instance, the offender received sentences of 12 months' immediate imprisonment on those two counts as part of a total effective sentence of 2 years 6 months' immediate imprisonment. The court in resentencing the offender would have imposed a suspended sentence 'somewhat less' than 2 years 6 months but for the time already served in custody.
8. In Grenfell v The State of Western Australia,[49] the 35-year-old offender with an extensive criminal record pleaded guilty to a number of offences, one of which was an offence against s 304(1) committed in the course of a violent 'home invasion' burglary. The s 304(1) offence involved discharging a shotgun in an area where children were sleeping, in a manner which did not actually result in injury. The offender was sentenced to 4 years 4 months' immediate imprisonment for the s 304(1) offence, as part of a total effective sentence of 12 years' imprisonment. Drawing an analogy with cases under s 304(2),[50] the court observed:[51]

For offences under s 304(1), the nature and seriousness of the offender's act and the severity and other circumstances of the endangering of the victim's life, health or safety will be relevant to an assessment of the offender's criminality, as will the potential consequences of the offender's conduct.

1. As noted at [108] below, the offence created by s 304(2) of the Criminal Code is materially different, having the additional element of an intent to harm, and carries a maximum penalty of 20 years' imprisonment. This court has imposed or upheld sentences in the range of 18 months to 10 years immediate imprisonment in respect of offences against s 304(2) of the Cri[52]nal Code.52
2. None of the above cases are useful comparators to the present. The circumstances of the offending and offenders were radically different, and in all of the cases the sentence for the s 304(1) offence was imposed as part of a greater total effective sentence. The cases do illustrate the wide variety of circumstances in which an offence against s 304(1) of the Criminal Code may be committed.
3. The appellant also points to the customary sentencing standards for the offence of assault causing bodily harm (s 317), where the maximum penalty is 5 years' imprisonment absent circumstances of aggravation.[53]

1. None of the appellant's challenges to the facts and circumstances of his offending have succeeded. Subject to the matter referred to at [107] - [109] below, the appellant should be resentenced by reference to the trial jud[54]'s factual findings.54
2. The injuries sustained by the complainant in the present case involved a number of bruises and welts as a result of being repeatedly struck with the cut-off length of hose. Significant aggravating factors were that the complainant was attacked at his own home, that the offence involved a sustained and premeditated assault with the Taser and hose and that the appellant's conduct involved a vigilante response to the damaging of his stepson's car earlier that day.
3. The offence is also aggravated by the psychological impact which the offence had on the complainant. The complainant described being unable to sleep without making sure all his doors and windows are locked. The complainant also refers to the fears expressed by the complainant's 11-year-old son (who with his mother found the complainant after the assault) about whether the appellant will return to the house.
4. The vigilante character of the attack also increases the significance of general deterrence as a sentencing consideration. Vigilante conduct of this kind is appropriately denounced by the courts. The rule of law requires that offenders be tried and, if convicted, punished by the courts in the manner provided for by the law. Members of the community must resolve their differences by lawful means rather than by purportedly taking the law into their own hands by physically harming perceived wrongdoers. The sentences that the courts impose on those who act contrary to the rule of law by taking personal vengeance need to be such as to deter not only the offenders from committing similar offences in the future but also to deter others from taking the law into their own hands.[55]
5. It may also be noted that the appellant does not have the benefit of mitigating factors such as youth, a plea of guilty or genuine remorse. However, the fact that he has been a well-regarded and productive member of the community is mitigating. The appellant has a limited criminal record, albeit one that comprises assault convictions. The offences are relatively few in number and, with the exception of a suspended sentence imposed for driving under suspension in 2001, were dealt with by fines.
6. Given the circumstances of the offence noted above, and the limited mitigating factors, a sentence of immediate imprisonment under pt 13 of the Sentencing Act would ordinarily be the only appropriate resentencing option. However, there are four matters which, in combination, lead us to the conclusion that conditionally suspended imprisonment is not an inappropriate type of sentence for the court to impose on resentence.
7. First, it is significant that the appellant has now been in custody on this charge since 26 October 2018, which is nearly 7 months. The incarceration of the appellant for that period has largely served the requirements of general deterrence and punishment.
8. Secondly, the appellant's incarceration has had an exceptionally severe impact on his partner's physical and mental health.
9. The circumstances facing the appellant's family at the time of sentence are summarised at [23] - [25] above. By applications in an appeal filed o[56]3 May [57]1956 and 8 May 2019,57 the appellant applies to adduce, as additional evidence in the appeal, two affidavits of his partner's father. We would receive those affidavits on the basis that they are relevant for the purposes of resentencing the appellant. Those affidavits and their annexures indicate that the following events have occurred after the imposition of the sentence on the appellant:

(1) In February 2019, after the appellant exhausted his paid leave entitlements with Onslow Salt, the appellant was granted leave without pay. At this time, the company terminated payments of the family's housing in Onslow, private health insurance and the stepdaughter's boarding school fees.

(2) The appellant's partner and 5-year-old son moved in with the partner's mother.

(3) The appellant's stepdaughter is attending school, and living with her maternal grandfather, in Perth (the appellant and his partner being unable to afford the fees for her boarding school).

(4) The appellant's partner began drinking heavily and was unable to continue her employment after the appellant's incarceration.

(5) The appellant's partner suffered from a serious coronary event in April 2019, and was admitted to Royal Perth Hospital for 4 days. The District Medical Officer at Onslow Hospital considers that her mental health is likely to have induced the worsening of her physical health. She is being driven to medical appointments in Perth by her father.

1. The mitigatory weight which can be given to the impact of incarceration on the appellant's family is limited. The fact that the family has lost its source of income and suffered significant emotional stress as result of the appellant's incarceration is not exceptional. It is a common consequence of imprisonment. The appellant's immediate family have received support from other family members while the appellant has been in custody.
2. We do accept that some weight can be given to the impact of the appellant's incarceration on his partner. Her severe childhood illness left her in a precarious physical and psychological state. The impact of the appellant's incarceration on her is unusually severe, and appears to have contributed to her current serious coronary condition. The combined physical and psychological impact of the appellant's incarceration on his unusually vulnerable partner may properly be regarded as exceptional. Knowledge of the impact on his vulnerable partner which has already resulted from his offending is likely to have a powerful personal deterrent effect on the appellant.
3. We do not accept the appellant's submission that these conclusions as to the impact of the appellant's incarceration on his family means that a sentence with a component of immediate imprisonment is necessarily inappropriate.[58] The impact on his family and the consequential reduction in significance of personal deterrence as a sentencing factor are not the only factors to be considered. Those considerations must be balanced against the other matters referred to at [95] - [97] above, to ultimately arrive at the sentence which is commensurate with the seriousness of the offence. However, this is a mitigating factor which should be given appropriate weight in determining the sentence which is commensurate with the seriousness of the offence.
4. Thirdly, the General Manager Operations of Onslow Salt has indicated that the appellant's position with Onslow Salt would be available to him if he is able to resume work in the immediate future. However, he says:[59]

In the event that [the appellant] remains in custody until October, this is too long a period of time for his position to be held open and his position will be advertised.

Given the continued availability of his employment at Onslow Salt, the appellant's rehabilitation would be best served by the imposition at this time of a sentence other than immediate imprisonment.

1. Fourthly, it is necessary to take account of the difference between the offences created by s 304(1) and s 304(2) of the Criminal Code.
2. Section 304(1) and s 304(2) of the Criminal Code create separate offences. The maximum penalty for the offence created by s 304(2) is 20 years' imprisonment, as compared to the maximum of 7 years' imprisonment provided for in s 304(1). There is an additional element of the offence created by s 304(2), namely that the person must have an 'intent to harm'. An intent to harm includes, relevantly for present purposes, an intent to unlawfully cause bodily harm to any person. Another difference is that s 304(1) refers to a person who 'unlawfully does any act', while s 304(2) simply refers to a person who 'does any act' which has the specified result. The latter difference is not material in the present case where the relevant act (of striking the complainant with the hose) was clearly unlawful.
3. This court must resentence the appellant consistently with the general principle, identified in R v De Simoni,[60] that no one should be punished for an offence of which he or she has not been convicted. This principle precludes this court from sentencing the appellant on the basis that he unlawfully assaulted the complainant with intent to cause bodily harm to the complainant. To resentence the appellant on that basis would be to punish him for the more serious offence against s 304(2), with which the State chose not to charge him and of which he has not been convicted.
4. Section 6(1) of the Sentencing Act requires that the sentence imposed on the appellant be commensurate with the seriousness of the offence of which he has been convicted. Under s 6(4) of the Sentencing Act, this court must not impose a sentence of imprisonment on the appellant unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it. We are of the view that the seriousness of the offence against s 304(1) of the Criminal Code is such that only imprisonment can be justified. Having reached that conclusion, the available sentencing options in this case, under s 39(2) of the Sentencing Act, are to:

(1) under pt 11, impose suspended imprisonment and order the release of the appellant;

(2) under pt 12, impose conditionally suspended imprisonment and order the release of the appellant; or

(3) under pt 13, impose a term of immediate imprisonment on the appellant.

Section 39(3) of the Sentencing Act requires that the court must not use one of these options unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use an option listed before that option.

1. In our view, a suspended sentence under pt 11 of the Sentencing Act would not be appropriate in this case. It would not provide for supervision and programs to address the offending behaviour, and in particular the contribution of alcohol to that behaviour. That is so whether the sentence is wholly or partly suspended.
2. As noted above, ordinarily a sentence of imprisonment under pt 13 of the Sentencing Act would be the only appropriate resentencing option in this case. However, in resentencing the appellant it is necessary to have regard to the matters referred to at [100] - [109] above. In our view, at this point in time, a conditionally suspended sentence is not an inappropriate sentencing outcome having regard to those matters. As noted in SBJ, it is not open to partly suspend a sentence of conditionally suspended imprisonment under the Sentencing Act.
3. When the prospect of the appellant being resentenced to a conditionally suspended term of imprisonment was raised with the appellant's counsel during the course of the hearing, he indicated that the appellant did not oppose that outcome.[61]
4. In our view, in all the circumstances, the appropriate sentence to be imposed by this court, taking account of time already served in custody and all other sentencing factors, is a sentence of 18 months' imprisonment, conditionally suspended for 12 months with programme and supervision requirements.

1. Although it has not been the subject of a ground of appeal, we note one unsatisfactory aspect of the conduct of the sentencing hearing by the trial judge.
2. The initial sentencing hearing took place on 2 November 2018. Trial counsel appeared at that hearing. In our view, she was not given a proper opportunity to make submissions in mitigation at that hearing. As trial counsel attempted to begin her submissions, she was faced with the trial judge criticising an aspect of her conduct of the trial. She was subsequently frequently interrupted by the trial judge, who on a number of occasions stated his conclusion on the issue being addressed without hearing what counsel had to say. The trial judge appeared to hold trial counsel responsible for the truth and relevance of matters which referees had included in their references. The consequence of the manner in which the hearing was conducted was that it was felt necessary for the appellant to brief Mr Elliott (who also appeared on the appeal) as substitute counsel at the adjourned sentencing hearings.[62]
3. There was a disparity in the manner in which the trial judge treated Mr Elliott and the prosecutor, on the one hand, and his treatment of the appellant's trial counsel, on the other hand. In our respectful opinion, the appellant's trial counsel was entitled to receive more courtesy and respect than she received from his Honour at the hearing on 2 November 2018.
4. The opportunity for trial counsel to make submissions in mitigation was not an occasion for the trial judge to offer a critique of her performance at trial. The consequence of his Honour doing so was that trial counsel understandably felt that she was not able to properly continue in the role of counsel. Either the appellant (if he was paying for his own representation) or the community (if he was receiving legal aid) had to bear the expense of briefing substitute counsel. While the potential unfairness to the appellant was cured by the different treatment of Mr Elliott when he was briefed, that disparity in the treatment of different counsel and the consequent need for substitute counsel to be briefed is to be regretted.

1. For the above reasons, we would make the following orders in the appeal:

(1) The appellant's application in an appeal filed on 3 May 2019, seeking leave to adduce additional evidence in the appeal, is granted.

(2) The appellant's application in an appeal filed on 8 May 2019, seeking leave to amend his grounds of appeal and to adduce additional evidence in the appeal, is granted.

(3) Paragraphs 17, 21, 22 and 37 of the affidavit of Neil French sworn 6 May 2019 are struck out.

(4) Leave to appeal on grounds 1, 2 and 3 is refused.

(7) The sentence imposed by the District Court of Western Australia on Indictment KAR 52 of 2017 is set aside, and there is substituted a sentence of 18 months' imprisonment, conditionally suspended for 12 months with a programme requirement and a supervision requirement.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Trial ts 330, 331 read with the evidence at trial ts 147 and 160.

[5] The application also sought leave to adduce additional evidence in the appeal, which is addressed at [102] below.

[7] That finding appears at trial ts 341.

[23] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

[24] Rowsell v The State of Western Australia [2015] WASCA 2 [17].

[29] Anderson v The State of Western Australia [No 3] [2014] WASCA 190 [96] - [97].

[33] SBJ v The State of Western Australia [2019] WASCA 32.

[40] Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).

[42] Rule 49(6) of the Criminal Procedure Rules 2005 (WA).

[43] The State of Western Australia v Maee [2018] WASCA 53.

[45] Narrier v The State of Western Australia [2011] WASCA 193.

[46] Bolton v The State of Western Australia [2012] WASCA 2.

[47] Colbung v The State of Western Australia [2013] WASCA 257.

[48] Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154.

[49] Grenfell v The State of Western Australia [2018] WASCA 31.

[50] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [134] - [137]; Kaokula v The State of Western Australia [2016] WASCA 198 [63]; Chikonga v The State of Western Australia [2017] WASCA 34 [24].

[52] See the summary in Penny v The State of Western Australia [2016] WASCA 52 [33] - [40], the decisions referred to in footnote 50 above, McAllister v The State of Western Australia [2017] WASCA 183, Ugle v The State of Western Australia [2018] WASCA 16, Darroch v The State of Western Australia [2018] WASCA 114 and DKN v The State of Western Australia [2018] WASCA 87.

[53] See the discussion in Spirovski v The State of Western Australia [2017] WASCA 230 [41] - [43].

[54] See [5] - [27] above.

[55] See, for example, Harrison v The State of Western Australia [2009] WASCA 58 [29]; R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 [110] - [114]; Wragg v The State of Western Australia [2013] WASCA 198 [40] and Hamid v The Queen [2019] VSCA 5 [47] - [49] and cases there cited.

[56] At the hearing of the appeal, the court struck out paragraphs 18, 22, 28 and 29 of the affidavit.

[57] The respondent objects to paragraphs 17, 21, 22 and 37 of the affidavit, and the appellant agrees to those paragraphs being struck from the affidavit. Those objections are properly made, and we would strike out those paragraphs.

[59] Affidavit of Neil French sworn 6 May 2019, annexure A.

[60] R v De Simoni (1981) 147 CLR 383, 389; Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 [44], [72]; SV v The State of Western Australia [2014] WASCA 123 [137]; Shi v The Queen [2014] NSWCCA 276; (2014) 246 A Crim R 273 [45] - [48].