Sentencing Act 1995, s 6(4), s 39(3), s 76

Hill v Bodenham [2000] WASCA 37

Thompson v The Queen (1992) 8 WAR 387

Weng Keong Chan (1989) 38 A Crim R 337

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Leonora, that on 7 June 2001 at Leonora he unlawfully wounded one Jeremy Robert Johnson, contrary to the provisions of s 301(1) of the Criminal Code. Unlawful wounding is a misdemeanour for which the maximum punishment fixed by law is 5 years' imprisonment. On summary conviction the penalty is a maximum of imprisonment for 2 years or a fine of $8000.

2 The appellant pleaded guilty in the Court of Petty Sessions at Leonora. There was an associated charge of unlawful assault, to which he also pleaded guilty. The facts revealed that at about 8.45pm on 7 June 2001 the appellant was refused service at the White House Hotel, Leonora. He was in an intoxicated state and had to be escorted from the premises by the complainant. When he had been taken outside the hotel he used a shanghai to sling a stone at the licensee who was standing in the hotel carpark. The stone missed him and others who were standing there. The appellant caused a disturbance outside the hotel, slinging stones into the carpark. He was approached by the complainant and he again used the shanghai to sling a stone at him. It struck the complainant under the right eye. The appellant then ran from the scene.

3 The complainant was treated at Leonora Hospital. He had a gash under his right eye about 3-4cm in length and it required 10 stitches. There was associated bruising and swelling.

4 Counsel for the appellant advised the Court that the appellant had first flung a stone at the licensee of the premises and had then been approached by the licensee's son, the complainant. It was contended that the complainant had pushed the appellant over on a number of occasions, following which the appellant had flung the stone at the complainant, striking him under the eye. It was submitted that the appellant had not intended to hit the complainant where he did, but he accepted the recklessness of his behaviour.

5 The appellant's antecedents were put before the Court. He was said to be 19 years of age and living in Leonora with his mother. He had lived his entire life in Leonora and was unemployed. He had a record of only minor convictions with no violent offences and did not often drink alcohol. It was contended that he had some prospects of work and in all the circumstances a community-based order with community service requirements would be the appropriate disposition of the matter.

6 The learned Magistrate responded to the submission by saying:

"Magistrate: Well, unlawful wounding is one of the most ... of the more serious offences that are dealt with in this court and I would have thought as a starting point for unlawful wounding a term or imprisonment is appropriate ...

Mr Tyers: Normally, Your Worship, I wouldn't necessarily disagree. I think this is a fairly unusual type of wounding ...

Magistrate: Well the publicans have got a responsibility under the Liquor Licensing Act, and I know there's some concern with the whole industry, perhaps where people are filled up with grog while they're in there and when they're drunk they're kicked out. But nevertheless, it's a legal operation, people go and have a drink without getting drunk and without causing problems and if someone causes problems for whatever reason then there is a duty on the publican to remove them and people who don't go and retaliate in the way the defendant has need to be discouraged."

7 At the conclusion of the plea made on behalf of the appellant the learned Magistrate sentenced the appellant. He said:

"Magistrate: Yes alright, just stand up, Mr Evans. I don't know whether gings are commonly carried or used around this community but it doesn't take much to appreciate the danger associated with firing a ging at some person and in this case you hit the person you were firing at just below the eye and he required six stitches. If it had been a couple of cm higher then he would have perhaps been blinded. Now, when I look at the circumstances of the matter, it's not a case where you were just shyaking with your mates and were playing games, this was a situation where you had been to the hotel and because of your intoxication you were asked to leave and the licensee has an obligation under the liquor licensing laws to maintain some sort of decorum in the establishment and when you're asked to leave there's an expectation that you leave and not come back. There's certainly not an expectation that you then, no matter what the circumstances, then start firing rocks at them. As I've said, unlawful wounding is a serious offence, it's one of the most serious offences that we deal within this court and it's my view that a message needs to be sent to the community that this sort of behaviour just won't be tolerated and for that reason I think a term of imprisonment is appropriate. Now having heard what's been said it may be that this is one of those circumstances where the term of imprisonment can be suspended. So what I propose to do is place you on a suspended term of imprisonment. On the unlawful wounding charge you will be fined ... you will be sentenced to 12 months imprisonment and that term will be suspended for a period of two years I think that's the only way I can reflect the seriousness of the charge."

On the charge of assault the appellant was fined $500.

8 On 6 August 2001 the appellant was granted leave by Roberts-Smith J to appeal against the sentence imposed on the charge of unlawful wounding. The grounds of appeal are as follows:

(a) The learned Magistrate erred by acting on a wrong principle, in sentencing, by stating:

"Well, unlawful wounding is one of the most ... of the more serious offences that are dealt with in this court and I would have thought as a starting point for unlawful wounding a term of imprisonment is appropriate ..."

(b) The learned Magistrate erred by imposing a term of imprisonment when there were other options available to him particularly having regard to:

(i) the legislative direction contained in Section 6(4) and Section 76(2) Sentencing Act 1995 (WA);

(ii) the Applicant's plea of guilty;

(iii) the Applicant's personal circumstances and antecedents; and

(iv) the nature of the offence and the circumstances in which the offence was committed.

(c) Alternatively, if a term of imprisonment was appropriate the sentence of 12 months suspended for two years was manifestly excessive in all of the circumstances particularly having regard to:

(i) the Applicant's plea of guilty;

(ii) the Applicant's personal circumstances and antecedents; and

(iii) the nature of the offence and the circumstances in which the offence was committed.

(d) Alternatively, if a sentence of 12 months imprisonment was appropriate the suspending of that sentence for two years was manifestly excessive particularly having regard to:

(i) the Applicant's plea of guilty;

(ii) the Applicant's personal circumstances and antecedents; and

(iii) the nature of the offence and the circumstances in which the offence was committed.

9 Counsel for the appellant conceded that unlawful wounding is a serious offence, but submitted that it was contrary to authority to suggest that the "starting point" for unlawful wounding was a term of imprisonment. Reliance was placed upon Messaoui v The Queen, unreported; CCA SCt of WA; Library No 9210.1; 4 December 1991 where Malcolm CJ, Pidgeon and Nicholson JJ said (at 12):

"A conviction for unlawful wounding need not necessarily attract a sentence of imprisonment. This is not to say that unlawful wounding is anything less than a serious offence. It is a serious offence: see Robinson v The Queen, unreported; CCA SCt of WA; Library No 7867; 27 September 1989 per Pidgeon J at 5. It is an offence which may be committed in circumstances which stop only barely short of more serious consequences. The threat to life and health posed by the offender's action and the possibility of more serious harm is a relevant sentencing consideration: Campbell v The Queen, unreported; CCA SCt of WA; Library No 7828; 6 September 1989 per Malcolm CJ at 3-4."

10 Counsel for the appellant thus contended that the learned Magistrate was in error in his approach to the sentencing process. It was also argued that s 39(3) of the Sentencing Act 1995 requires that the learned Magistrate should have eliminated other alternative sentencing options before concluding that a sentence of imprisonment was the only appropriate disposition of the matter. It was contended that in this respect the learned Magistrate had made an error of principle in the sentencing process.

11 Counsel for the appellant argued that it could not be said that the seriousness of the offence was such that only a sentence of imprisonment could be justified (Sentencing Act, s 6(4)) and in the circumstances of the case there were sufficient mitigating factors to leave open a sentence other than one of imprisonment. These included the appellant's plea of guilty at the first opportunity, a degree of provocation offered by the complainant to the appellant; the appellant's young age and his absence of any record of violence.

12 I am not sure that it can be said that the complainant offered any provocation to the appellant. It appears rather that he was attempting to prevent the appellant from unruly and potentially dangerous behaviour, the appellant having already slung stones towards the licensee and others who were in the carpark. Be that as it may, the appellant's early plea of guilty, his youth and absence of any violent record were certainly important mitigating factors.

13 Counsel for the respondent contended that the learned Magistrate had made no error in stating that the offence of unlawful wounding was one of the more serious offences dealt with in Courts of Petty Sessions. Nor, it was argued, did the learned Magistrate err in stating that the starting point for the offence was a term of imprisonment. It was submitted that the learned Magistrate was not required to state that all alternatives set out in the Sentencing Act had been considered and excluded, but it was enough that in general terms he indicated that he had considered the various alternatives and stated shortly his reasons for adopting the sentence he considered appropriate. Reliance was placed upon Nevermann (1989) 43 A Crim R 347 where (at 350), Wallace J said:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

14 I agree that the learned Magistrate was not in this case required to go through and exclude each of the available dispositions set out in s 39(2) of the Sentencing Act. It is apparent that the learned Magistrate considered the seriousness of the offence was such that only a sentence of imprisonment was appropriate, although having given the matter careful consideration, his Worship concluded that the sentence could appropriately be suspended under s 76 of the Sentencing Act.

15 The question is whether a sentence of imprisonment was the only available option, having regard to the circumstances of the offence. In this regard counsel for the respondent points to the maximum penalty for the offence and the circumstances of the commission of the offence. In relation to the latter, the use of the slingshot and the nature of the injury caused were said to be important considerations. So was the fact that the complainant was an employee of the licensee of the hotel. This last submission is undoubtedly correct, as I pointed out in Johnson v Hayter [2001] WASCA 118. At [17] I said:

"... there are certain persons who by virtue of their position should expect the protection of the courts. These include police officers (Hill v Bodenham [2000] WASCA 37), licensees of hotels (Pearce v Bancroft, unreported; SCt of WA; Library No 7594; 12 April 1989) and operators of small businesses (Miles v The Queen (1997) 17 WAR 518 at 521). Taxi drivers are also in a special category by reason of legislative provisions."

16 Various cases were relied upon by the respondent to support the proposition that the sentence imposed was not manifestly excessive, having regard to the range of sentences customarily imposed for the offence. They include Hayden & Ors v Hamilton, unreported; SCt of WA; Library No 960396; 26 July 1996; Richards v The Queen, unreported; CCA SCt of WA; Library No 940436; 1 August 1994 and The Queen v Logan, unreported; CCA SCt of WA; Library No 950471; 7 September 1995. These cases cover a wide variety of factual situations. Some are concerned with the offence of unlawful wounding, but others with assault occasioning bodily harm or assaulting a public officer. Sentences of imprisonment have certainly been considered appropriate in the most instances, although probation was thought appropriate for Kickett in Hayden & Ors v Hamilton (supra).

17 In Richards v The Queen (supra) a sentence of 12 months' imprisonment was considered appropriate for unlawful wounding by an Aboriginal offender who speared another. He had first been put on probation, but following breach of the order was sentenced in the District Court to 2 years 6 months' imprisonment. The maximum term of imprisonment then applicable to the offence was 3 years, and the Court of Criminal Appeal reduced this sentence to one of 12 months' imprisonment. Malcolm CJ (at 7 - 8) said:

"It is clear from decisions such as Bensegger v The Queen [1979] WAR 65 that the maximum penalty provided for in s 301 is reserved for the worst cases of the kind. In the present case, while the altercation between the applicant and the complainant had the potential to result in serious harm to the complainant, the wounds, particularly the wounds to the head, were of a relatively superficial kind. The applicant understood what he had done after he had recovered from the amount of alcohol that he had consumed. He went to the police station and gave himself up. He admitted the offence and that demonstrates a degree of remorse and must have been a factor which the original sentencing Judge took into account when reaching the conclusion that he did.

When one takes into account all of the relevant circumstances as I have recounted them, the applicant's position in the community, and the gaol sentence which had been imposed upon him in respect of the drink driving and associated offences, which he had just completed serving when apprehended for the breach of probation, I would have thought that a much lesser term of imprisonment than that which was imposed would be appropriate."

18 The principles upon which an appellate court may interfere with a discretionary judgment such as that of the learned Magistrate in this case were set out in clear terms in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

19 This is a case in which an alternative disposition of the matter may have been open to the learned Magistrate. In particular, a community-based order may have been an acceptable option. It was urged upon the learned Magistrate by the appellant's counsel, but his Worship took the view that a sentence of imprisonment was the only appropriate disposition of the matter. Whilst views may differ about that, it cannot, in my view, be said that the learned Magistrate was in error in this regard. The offence of unlawful wounding is serious. It carries a maximum penalty of imprisonment for 5 years, although on summary conviction that sentence is 2 years or a fine of $8000. It is, however, relevant to have regard to the statutory maximum without regard to the jurisdictional limit. This I referred to in Johnson v Hayter (supra), where (at [10]) I cited earlier decisions of the Court in which the principle was made clear:

"... the learned Magistrate was correct to recognise that the statutory maximum for the offence of assault occasioning bodily harm is a sentence of imprisonment for 5 years, notwithstanding that when dealt with in summary jurisdiction that maximum is reduced. This was made clear in Ravi-Pinto v Power, unreported SCt of WA (Murray J); Library No 930647; 26 November 1993 and Casserly v The Queen, unreported; SCt of WA (Scott J); Library No 990164; 31 March 1999. In the latter case, Scott J made the following observations which are relevant to this case:

"The appellant was charged with assault occasioning bodily harm under s 317(1) of the Criminal Code. That offence carries a maximum term of imprisonment of 5 years. The section does, however, provide that on summary conviction the maximum term is imprisonment for 2 years or a fine of $8,000. Whilst it is true to say that the term of 2 years' imprisonment without parole imposed by the learned Magistrate was the maximum that she was permitted by law to impose, it is not right to suggest that the penalty imposed was the maximum provided for the offence: in Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993 Murray J said at 13:

'Of course it is the case that, upon indictment, the offence of burglary is punishable by up to 14 years imprisonment. The penalty of two years imprisonment, or a fine of $8,000, represented, in the circumstances of the case, the maximum punishment which may be awarded by a Court of Petty Sessions dealing with such a case upon the election of the defendant. It is a jurisdictional limit and in no sense a maximum penalty to be reserved for the worst cases of the type.' "

20 In my view the learned Magistrate's statement that unlawful wounding is one of the more serious offences dealt with in the Court of Petty Sessions is correct. I do not consider that the learned Magistrate can be said to have been wrong in forming the view that in general terms the starting point for unlawful wounding is a term of imprisonment. That is not to say that a conviction for unlawful wounding will necessarily or always attract a sentence of imprisonment. The Court of Criminal Appeal made this clear in Messaoui v The Queen (supra). Much depends upon the circumstances in which the offence was committed. This was a case in which the circumstances did stop "only barely short of more serious consequences" (Messaoui v The Queen (supra) at 12). The complainant might well have lost his eye had the stone which hit him made contact only a few centimetres higher. As it was, the injury was serious, and the offence was in the serious category of unlawful wounding offences.

21 I do not think it is possible to say that the discretion exercised by the learned Magistrate in this case was erroneous. Having determined that a sentence of imprisonment was the appropriate disposition of the matter, he suspended that sentence of imprisonment. The suspension was consistent with the mitigating factors which were raised on behalf of the appellant. The approach to the matter was in accordance with Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538.

22 The decision of the learned Magistrate to suspend the sentence for a period of 2 years was unaccompanied by any reasoning. The period of 2 years' suspension is the maximum for which a term of imprisonment can be suspended: Sentencing Act, s 76(1). I am unaware of any authority on the question of the criteria to be adopted on considering the length of suspension to be imposed, but I would have thought the maximum period of 2 years to be reserved for serious cases, such as the offence of robbery, where a suspended sentence would be rare, or for cases where a long period for rehabilitation of the offender was necessary.

23 It does not appear in the present case that the offender required a lengthy period of suspension for purposes of rehabilitation. What was required was a sufficient period of suspension to drive home to him the need to correct his unruly behaviour and refrain from outbursts of offending by way of disorderly conduct and worse. In my view, suspension of the sentence of imprisonment for a period of 12 months would have achieved that result. I would add that Crown counsel accepted that this would be more appropriate than the 2 year period of suspension imposed by the learned Magistrate.

24 I would, therefore, allow the appeal in part and vary the length of the order for suspension substituting for it a period of 12 months.