File No : BU 4791 of 2006, BU 4797 of 2006, BU 5026 of 2006, BU 5027 of 2006, BU 291 of 2007, BU 292 of 2007, BU 293 of 2007

Appeal - Criminal law and procedure - Application for leave to appeal against sentence - Convictions for burglary, aggravated assault, breach of violence restraining order and breach of bail - Grounds that suspended sentence should have been imposed - Whether sufficient weight given to mitigating factors - Ground that total sentence was manifestly excessive - Whether sufficient weight given to mitigating factors - Whether magistrate failed to consider sch 1 of Sentencing Legislation Amendment and Repeal Act - Totality principle

Legislation:[

Act](/cgi-bin/viewdoc/au/legis/nt/consol_act/la133/) Amendment (Family and Domestic Violence Act) 2004 (WA)

Bail Act 1982 (WA), s 51

Criminal Law Amendment (Simple Offences) Act 2004 (WA)

Sentencing Act 1995 (WA), s 6, s 39, s 87

1 LE MIERE J: This appeal is against an aggregate sentence of 30 months' imprisonment imposed by his Honour Magistrate Fisher in the Magistrates Court of Western Australia at Bunbury on 9 February 2007, following the appellant's conviction for two offences of aggravated assault occasioning bodily harm, one offence of burglary, three offences of breach of violence restraining order and one offence of breach of protective bail conditions.

2 The appellant's appeal notice was filed on 9 March 2007. Leave to appeal was granted by Miller J on 4 April 2007. On the hearing of the appeal on 8 June 2007 I granted leave to the appellant to amend his grounds of appeal. The amended grounds of appeal are set out in the appellant's amended grounds of appeal received by the Court on 11 June 2007.

3 The appellant was aged 58 years at the time of each of the offences. The victim of each of the offences, the complainant, was the appellant's former partner. The appellant and the complainant were in a de facto relationship for about 12 months until November 2006. At some time prior to the appellant committing the first offence the complainant had refused to speak to or contact the appellant.

4 At 11 pm on Thursday, 30 November 2006 the complainant was at her home when she received a phone message from the appellant stating that he was going to visit her in 10 minutes and talk things through. The appellant attended the complainant's home and knocked on the front door. The complainant refused him access. The appellant moved to the front ground floor bedroom window that was open and lifted up the fly screen. The complainant rushed to the bedroom to close the window. The appellant leaned in the window and grabbed the complainant around the waist and pulled her towards the window. The complainant asked repeatedly for the appellant to release her but he did not. The complainant asked the appellant to leave. The complainant pulled away from the appellant in order to break his hold on her but he held firm and, as a result of the momentum of the struggle, the appellant pulled the complainant out of the bedroom window. The complainant fell approximately five feet towards the ground but landed on the appellant, who had also fallen over. The complainant received minor grazes and soreness to her legs. She did not seek medical attention.

5 On 1 December the complainant applied to the Magistrates Court in Bunbury for a violence restraining order. The order was granted and prohibited the appellant contacting the complainant. The order was served on the appellant on 1 December.

6 On the evening of 3 December the appellant twice sent SMS messages to the complainant and left an 'answer phone' message on her mobile phone. On 4 December 2006 the appellant was charged with the offence of breaching the violence restraining order by having contacted the complainant in the manner I have described. The appellant appeared in the Bunbury Magistrates Court. He was granted bail on conditions which included a condition not to contact or attempt to contact the complainant directly or indirectly.

First assault, second breach of violence restraining order

7 On Friday 8 December the appellant was in Trafalgars Hotel in Bunbury when the complainant entered the hotel. The appellant approached the complainant and grabbed her by her right arm. There was a verbal exchange between the appellant and the complainant. The complainant then left Trafalgars and entered the nearby Burlington Hotel. About 45 minutes later the appellant approached the complainant whilst she was dancing on the dance floor in the Burlington Hotel. The appellant grabbed the complainant's arm and led her from the dance floor towards the bar. The appellant then spoke to the complainant and bit her on the left cheek, causing blood to spill onto the complainant's hand and blouse. The appellant then left the hotel. The appellant was later charged that he had unlawfully assaulted the complainant and did her bodily harm. The appellant was also charged with breaching the violence restraining order issued on 3 December.

Second assault, breach of bail condition, third breach of violence restraining order

8 The remaining offences of which the appellant was convicted all took place on 12 January 2007. At about 9.00 pm on that day the complainant was at the Rose Hotel in Bunbury. The appellant approached her from behind and placed his arm around her upper chest. The appellant said to the complainant, 'I love you' and attempted to hug her. The appellant was persuaded by friends of the complainant to leave the hotel. About 10 minutes later the appellant re-entered the hotel, ran at the complainant and grabbed her around her throat. The appellant forced the complainant to the ground, causing her to hit her head and bruise her elbow. He then left the hotel. As a result of that conduct the appellant was charged with, and pleaded guilty to, having unlawfully assaulted the complainant and thereby doing her bodily harm, having breached the violence restraining order issued on 3 December 2006 and having failed to comply with a requirement of his bail undertaking on 21 December 2006.

Proceedings before Magistrate Langdon on 21 December 2006

9 On 21 December 2006 the appellant appeared before Magistrate Langdon on the charges of burglary on 30 November 2006, breach of violence restraining order on 3 December 2006, aggravated assault occasioning bodily harm on 8 December 2006 and breach of violence restraining order on 8 December 2006. The appellant pleaded guilty to all four charges. Counsel appeared for the appellant. Counsel for the appellant gave to Magistrate Langdon three references: an undated reference from Tansyn Forward, the appellant's daughter; an undated reference from Helen Rigby, the appellant's former wife; and a reference dated 13 December 2006 from a general practitioner. Magistrate Langdon remanded the appellant on bail to appear for sentencing on 9 February.

10 The appellant pleaded guilty to all charges and appeared before Magistrate Fisher for sentencing on 9 February 2007. The appellant was represented by counsel. Counsel tendered two further references: a further reference from the general practitioner dated 30 January 2007 and one from Janet Adams dated 2 February 2007. Counsel made submissions in mitigation of sentence.

11 The magistrate then delivered sentencing remarks. The magistrate referred to the maximum penalties prescribed for each of the seven offences of which the appellant was convicted. The magistrate then made remarks including the following:

I might say at the outset that each of those offences viewed in isolation are of themselves sufficient to give rise to a consideration of a custodial sentence, even for an offender, albeit, shall I say, a middle-aged offender without essentially any prior relevant conviction, to that extent you have, so far as this court is concerned, no prior conviction save for a drink-driving offence, albeit at a time when you were then, as I'm to understand, in some upheaval as a result of the breakdown of a relationship.

It's otherwise, as I say, necessary to re-state some of the circumstances. You were in relationship with the victim, [the complainant], that relationship, as I am to understand, commencing some time in October 2005. The relationship, without going into detail, was not without its difficulties. The relationship failed at about some time in November/December of 2006. In the throes of that failure it was behaviour that you engaged in that was sufficiently concerning and alarming, that you burgled essentially at law the premises of the victim; that is, your previous partner.

12 The magistrate then outlined the circumstances of the burglary offence and continued:

It was, on the face of these events, the first matter that gave rise to the concerns that have been evidenced now in the victim impact statement as to the feelings of safety, security and repose of the lady in her own dwelling.

13 The magistrate referred to the prohibitions imposed on the appellant by the violence restraining order and continued:

Despite those prohibitions you again, on 3 December, engaged in some aberrant behaviour in some circumstances, given the nature of the behaviour, understandable with the continuing emotional turmoil and, as I understand, depressed state of yourself. A fairly innocuous breach in the sense that you sent two text messages to the lady had [sic] left on an unanswered answering service a telephone message. A voice message. Serious matters but, on the scale of things, reasonably innocuous.

14 The magistrate then referred to the appellant's appearance in court on 4 December and his remand on bail which included a protective condition that the appellant was not to contact the complainant. The magistrate then referred to the events that occurred at Trafalgars Hotel on 8 December and the appellant's unlawful assault of the complainant at the Burlington Hotel on that day. The magistrate referred to the appellant's appearance in court on 21 December where he had been again released on bail with a protective condition including a curfew. The magistrate outlined the appellant's unlawful assault of the complainant at the Rose Hotel on 12 January 2007.

With that scenario, on any account, Mr Forward, the court can suggest the only appropriate disposition is a custodial one, notwithstanding your previous prior unblemished relevant record, and notwithstanding your pleas of guilty in respect of each event. And again, notwithstanding in all the circumstances, when one comes to import into the consideration those matters that are more subjective and personal to you, your historical family and upbringing circumstances, including what is described as a personality characteristic by the respective psychological reports, and your, what is suggested but yet clinically diagnosed depressive illness.

The magistrate then made the following remarks which give rise to a matter raised in the grounds of appeal:

I am somewhat alarmed by one of the references that are put to the court which suggests in some degree a significant discussion with an associate for the purpose of some influence. That influence, I take it, was for the purpose of the bail.

It is, in my respectful submission, the case that there needs to be a confidence within the community that where persons come to court to seek the benefit of the protection of the court that they shall have it, comfortable in the knowledge that if anyone breaches those protective considerations, be it restraining order or protective conditions, then the persons will be dealt with swiftly and severely. If it were otherwise, people would not seek the protection of the courts, and the principles and fundamentals of justice would be very much undermined, and we would move, albeit very gently, to a state of anarchy.

The magistrate then determined that the appropriate sentence was an immediate custodial sentence, stating:

Self-evidently, notwithstanding, as I indicate, those personal favourable factors of your lack of prior record, your plea of guilty or otherwise, conduct within the community, those matters that are of a general deterrence and a personal deterrence to you outweigh those personal considerations. And the only appropriate disposition is an immediate custodial sentence. A suspension is not appropriate.

16 The magistrate then imposed the sentences for each offence. The following table prepared by the respondent summarises the sentences handed down by the learned magistrate:

The court has dealt with it principally on a totality, mindful of the end result being such that it is a just result and not a crushing result. In the circumstances, they are very distinct in time, place and circumstances, but never more so than those events that occurred separately at the two hotels. In that sense, the assault occasioning bodily harm in respect of each of those events it [sic] to be served cumulatively one with the other, giving a total head sentence of 30 months' imprisonment, which, in the circumstances, I declare that you are eligible for parole.

18 The appellant's final grounds of appeal set out in an undated document entitled 'Amended Grounds of Appeal pursuant to leave granted the 8 June 2007' are as follows:

1. The Magistrate erred in jailing the Appellant and alternatively not imposing either suspended sentences or an ISO or a combination of both; taking into account:-

(a) the Appellant was a 58 year old man with good antecedents and only 1 prior conviction (excess 0.08 in 2000);

(b) the time already spent in custody;

(c) his depressive illness;

(d) his early pleas of guilty, co-operation and remorse;

(e) irrelevant and erroneous matters considered; the Appellant via a referee had improperly influenced or attempted to do so, an associate (of the Magistrate for bail purposes).

1. Alternatively the Magistrate erred in imposing a total sentence upon the Appellant that was manifestly excessive; and imposing individual sentences (except in relation to Bunbury Charge No. 4797/06) that were manifestly excessive; taking into account:-

(a) the Appellant was a 58 year old man with good antecedents and only 1 prior conviction (excess 0.08 in 2000);

(b) the time already spent in custody. At the outset on the 9 February, 2007 defence Counsel (not the prosecutor) outlined the time already spent in custody - 44 days total; yet the Magistrate not only gave no credit for that time, he did not even consider it in the sentencing comments;

(c) his depressive illness;

(d) his early pleas of guilty, co-operation and remorse. In his sentencing comments the Magistrate mentioned prior good record, guilty pleas, personality matters and depressive illness but did not articulate any actual discount;

(e) irrelevant erroneous matters considered;

(f) failure to consider and take into account schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003.

19 Ground 1 is that the learned magistrate erred in imposing a sentence of imprisonment and not imposing a suspended sentence or an ISO or a combination of both.

20 According to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665:

[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. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice [15].

21 The question for an appeal court is whether the sentence imposed by the sentencing judge involved error of a kind warranting appellate interference with the discretionary judgment. Unless some material error of fact or law can be discerned in the reasoning of the sentencing judge, then the question for the appellate court to consider is whether the circumstances of the case are such that the imposition of a sentence involved an implied error.

22 A court must not impose a term of immediate imprisonment unless satisfied that it is not appropriate to impose a term of suspended imprisonment: Sentencing Act 1995 (WA) (Sentencing Act) s 39 and s 6. The decision whether or not to suspend an offender's prison term involves a two stage process. First, having considered all the alternatives, the court must determine that a sentence of imprisonment is the most appropriate sentence. Only then may the court determine whether the sentence of imprisonment imposed should be suspended: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, [79] (Kirby J). In Dinsdale, Kirby J observed ([85]), 'the two steps should not be elided. Unless the first is taken, the second does not arise'. In deciding whether to suspend the term of imprisonment, the court must revisit the factors which it had considered in arriving at the decision that imprisonment was the only appropriate sentence.

23 It is arguable whether or not the learned magistrate undertook the two stage process referred to by Kirby J in Dinsdale. Early in the learned magistrate's sentencing remarks his Honour stated that each of the offences of which the appellant was convicted viewed in isolation are of themselves sufficient to give rise to a consideration of a custodial sentence, even for a middle aged offender without any relevant prior conviction and even though the offences occurred as a result of the breakdown of his relationship with the complainant. The magistrate then reviewed the circumstances of the offences and stated that:

[T]he court can suggest the only appropriate disposition is a custodial one, notwithstanding your previous prior unblemished relevant record, and not withstanding your pleas of guilty ... And again notwithstanding ... consideration [of] those matters that are more subjective and personal to you, your historical and family and upbringing circumstances, including what is described as a personality characteristic by the respective psychological reports, and ... what is suggested but yet clinically diagnosed depressive illness.

24 The learned magistrate then referred to the need for the courts to provide protection for people who seek the protection of the courts by way of restraining orders or protective bail conditions. The learned magistrate said that matters personal to the appellant were outweighed by the requirements of general and personal deterrence. The learned magistrate concluded 'the only appropriate disposition is an immediate custodial sentence. A suspension is not appropriate'.

25 The learned magistrate appears, at least to some extent, to have elided the two steps of the two stage process referred to by Kirby J in Dinsdale. That gives rise to the issue of whether the two step process is an optional or mandatory requirement for a court considering a term of suspended imprisonment.

26 In Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246, one of the appellant's grounds of appeal was that the sentencing judge had failed to consider adequately or at all the imposition of a suspended sentence. McLure JA said:

The statutory scheme requires the court to be positively satisfied that the option of suspending imprisonment (and each remaining lesser option) is not appropriate before it can impose a term of (immediate) imprisonment. I respectively agree with Parker J's analysis of Dinsdale in Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74. He said (at 78):

' ... 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) [of the Act] 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 is 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 ss 6(4) and 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 ss 6(4) and 39(3) are considered, but that they be properly considered' [12].

27 In Beske v The State of Western Australia [2006] WASCA 285, the appellant applied for leave to appeal on grounds that included that the sentencing judge followed an incorrect sentencing process and therefore erred in not suspending the sentence imposed. The particulars were that the sentencing judge first determined whether or not to suspend the sentence and secondly determined the length of sentence. Roberts-Smith JA refused leave to appeal. His Honour dealt with the relevant ground of appeal as follows:

The appellant submits that the correct approach to the issue whether or not to suspend a sentence is first to discuss and arrive at what would be the appropriate term of imprisonment before discussing whether to suspend the sentence (Duong v The State of Western Australia [2006] WASCA 110 at [41]). The submission is that it is clear from Dinsdale that if the sentencing Judge concludes that an appropriate sentence of imprisonment is 16 months or less, then he or she must then take the second step of considering whether to suspend the sentence (see again Duong per Pullin JA at [40]).

Those submissions correctly state the law but the assertion upon which this ground depends is that his Honour took a legally incorrect approach and in my view that cannot be demonstrated. I appreciate that in his sentencing remarks his Honour referred first to his conclusion that an immediate term of imprisonment was the only appropriate sentence and then went on to refer to Dinsdale and his decision not to suspend the term. However, sentencing remarks are not to be read as an exercise in statutory construction.

What is required of a sentencing Judge is to have regard to all relevant considerations and all relevant sentencing options. The Sentencing Act 1995 (WA) itself required the term of imprisonment to be determined first. That must be so because suspended imprisonment is not to 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 (s 76(2) of the Sentencing Act).

Further, as a term or aggregate of more than five years cannot be suspended (s 76(1)), it is necessary for a sentencing Judge to know first how long the term or aggregate of terms would be in these circumstances.

I do not consider the Court of Appeal is likely to be brought to the conclusion that the sentencing Judge made an error of law as particularised. Leave to appeal must be refused on this ground [20] - [24].

28 In R v Foster (2001) 33 MVR 565, the New South Wales Court of Criminal Appeal dismissed the Crown appeal against a sentence of suspended imprisonment. Badgery-Parker AJ with whom Giles JA and Greg James J agreed, referred to the 'two stage process' and said:

It does not, I think, follow that every failure to advert to the two stage procedure requires a conclusion that this court must set the sentence aside and proceed to re-sentence. Failure to adopt the two stage procedure may be productive of error, and because it entails that risk, sentencing Judges should be at pains, to proceed in the manner which the statute requires [33].

Where, as here, it appears that the judge has not proceeded in the appropriate fashion but, as Kirby J expressed it, 'elided' the two steps, it is appropriate that this court consider carefully the findings which the judge did make about relevant circumstances, in order to determine whether the sentence is erroneous, because the judge has failed to take account of all relevant matters, or has taken irrelevant matters into consideration, an error which would more readily be revealed at the strict two-step procedure being followed [35].

30 In R v Zamagias [2002] NSWCCA 17, Howie J, with whom Hodgson JA and Levine J agreed, said at [30]:

Having determined the appropriate sentence, the court must explain the sentence imposed and this may require in an appropriate case some discussion of the alternatives available and why a particular alternative has been chosen: JCE at [19]. But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed: R v Foster at [33]. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner: R v Saldaneri [2001] NSWCCA 480 at [14]. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous: R v Foster at [35].

31 In this case, the failure of the learned magistrate to clearly indicate that he has taken the two step approach to the determination of a sentence of imprisonment requires the court to carefully examine whether the magistrate has followed the statutory scheme or failed to take into account relevant considerations or taken into account irrelevant considerations.

32 The statutory scheme requires the magistrate to consider whether a sentence other than some form of imprisonment is appropriate. That does not mean that the magistrate must 'mechanically work through each of the sentencing options set out in s 39(2) ... There are many cases where a serious offence has been committed and where sentence of imprisonment will be imposed without any reference to some of the other sentencing options listed in s 39(2)(a) - (f)': Duong v Western Australia Pullin JA at [42].

33 The learned magistrate gave proper consideration to whether a sentence other than one of imprisonment was appropriate and concluded that no sentence other than some form of imprisonment was appropriate. The learned magistrate, having reviewed the facts and circumstances of each of the offences, concluded 'the only appropriate disposition is a custodial one' notwithstanding the appellant's previous unblemished relevant record, his pleas of guilty, matters personal to the appellant including his historical family and upbringing circumstances and the matters disclosed by the psychological reports.

34 The magistrate was required to determine whether to impose a sentence of suspended imprisonment. In making that decision he was required to take into account all the matters relevant to the circumstances of the offence as well as those personal to the offender: Kirby J in Dinsdale at [85]. The learned Magistrate did that. His Honour referred to the appellant's 'personal favourable factors' his 'lack of prior record', his 'plea of guilty', his 'conduct within the community' as well as 'those matters that are of a general deterrence and a personal deterrence'. The Magistrate concluded 'the only appropriate disposition is an immediate custodial sentence. A suspension is not appropriate'.

35 Ground 1 of the appeal asserts that the magistrate erred in not imposing a suspended sentence or other non-custodial sentence taking into account the five matters particularised in ground 1 of the appeal. I will refer to each of the matters particularised in ground 1 of the appeal.

36 The first particular is that the appellant was a 58-year-old man with good antecedents and only one prior conviction (excess 0.08 in 2000). The magistrate expressly referred to the appellant's 'previous prior unblemished relevant record' in determining whether or not a term of imprisonment was appropriate. Immediately before stating that the appropriate disposition was an immediate custodial sentence and that a suspended sentence was not appropriate the magistrate again referred to the appellant's 'lack of prior record'.

37 The second particular is the time already spent in custody. In the appellant's written submissions the appellant submitted that the magistrate failed to consider time in custody and that up to two months should have been set off from the sentence. That is, the appellant submitted that the time spent in custody was relevant to the term of imprisonment imposed not whether the term should have been suspended. That may well be because s 87 of the Sentencing Act says, in effect, that the court may take into account time spent in custody by reducing the term period or by ordering that the term begin on a specified day not later than the date of the sentence. The section does not expressly provide for the court to take into account time spent in custody in determining whether or not to suspend a term of imprisonment. In any event, as I have said, the appellant did not submit that the magistrate erred in failing to take into account time spent in custody in determining whether or not to suspend the term of imprisonment.

38 The third particular is the appellant's depressive illness. Immediately before stating that suspended imprisonment was not appropriate the magistrate referred to the appellant's 'personal favourable factors' and 'personal considerations'. The magistrate had previously detailed that the matters subjective and personal to the appellant included the matters disclosed in the psychological reports which suggested depressive illness.

39 The fourth particular is the appellant's early pleas of guilty, co-operation and remorse. Again, the magistrate specifically referred to the appellant's plea of guilty immediately before stating that a suspended term of imprisonment was not appropriate.

40 The final particular is 'irrelevant and erroneous matters considered; the Appellant via a referee had improperly influenced or attempted to do so, an associate (of the Magistrate for bail purposes)'. This ground of appeal is based upon the following statement in the course of the learned magistrate's sentencing remarks. I am somewhat alarmed by one of the references that are put to the court which suggests in some degree a significant discussion with an associate for the purpose of some influence. That influence, I take it, was for the purpose of the bail.

41 Counsel for the appellant submitted that the sentencing magistrate appears to have considered that one of the references handed to magistrate Langdon contained, or amounted to, some improper attempt to influence the magistrate to grant bail or in relation to the terms of the bail granted. Counsel for the respondent did not submit that any of the references handed to the magistrate, or anything contained within them, amounted to an improper attempt to influence the magistrate.

42 Neither counsel submitted that the sentencing magistrate's statement that he was alarmed by one of the references was relevantly connected to any other part or parts of the learned magistrate's sentencing remarks. In those circumstances it is not appropriate for me to speculate as to what the learned magistrate was referring to when he referred to being alarmed by one of the references put to the court.

43 The learned sentencing magistrate's statement was irrelevant. However, I am not satisfied that the learned magistrate took into account his alarm at the reference when determining that a suspended sentence was not appropriate. On a fair reading of the magistrate's reasons, he decided that suspended imprisonment was not appropriate because of the circumstances of the offences and the need for general deterrence and personal deterrence which considerations outweighed all the matters personal to the appellant.

44 Finally, in considering this ground of appeal it is necessary to consider whether, notwithstanding that no specific error has been identified, the sentence of immediate imprisonment is unreasonable or plainly unjust such that the court may infer that in some way there has been a failure properly to exercise the discretion which the law reposed in the sentencing court. In such a case, 'although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred': House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In this case the appellant submits that in all of the circumstances the imposition of an immediate term of imprisonment and the failure to impose a suspended term of imprisonment is unreasonable or plainly unjust such that the exercise of the sentencing magistrate's discretion must be reviewed on the ground that a substantial wrong has occurred.

45 I find that the objective gravity of the appellant's conduct was such that imposing a term of immediate imprisonment cannot be described as an error nor can the court infer that the sentencing magistrate made some otherwise unidentified error or in some way failed properly to exercise the discretion which the law reposes in the sentencing court. The objective seriousness of each of the offences of aggravated assault occasioning bodily harm in the circumstances in which they were committed, the need for general and particular deterrence and the necessity for the sentence to provide protection for people in the position of the complainant leads to the conclusion that a sentence of suspended imprisonment was not appropriate and that only a sentence of immediate imprisonment was appropriate. That is so notwithstanding the matters personal to the appellant, including his age, his antecedents, his previous good character, his mental and emotional state when he committed the offences and his early pleas of guilty.

47 Ground 2 is that the magistrate erred in imposing a total sentence upon the appellant that was manifestly excessive and imposing individual sentences (except in relation to the first breach of violence restraining order) that were manifestly excessive taking into account six specified matters. The ground as originally formulated was that the total sentence was manifestly excessive taking into account the six specified matters. The appellant argued that the total aggregate sentence of 30 months was manifestly excessive. The appellant further argued that the sentence of 18 months' imprisonment for the first offence of assault occasioning bodily harm was manifestly excessive but did not otherwise make submissions in relation to the individual offences for which he was sentenced.

48 I turn now to the matters relied on by the appellant as demonstrating that the sentence was manifestly excessive. The first matter is that the appellant was a 58 year-old man with good antecedents and only one prior conviction. The sentencing magistrate expressly referred to the appellant's antecedents and prior good record.

49 The second matter relied upon by the appellant is the time he had already spent in custody. Counsel for the appellant submitted that the appellant had spent 41 - 44 days in custody prior to being sentenced. Section 87 of the Sentencing Act provides that the court may take into account time spent in custody in respect of the offence for which the offender is being sentenced. If the conditions of s 87 are met then the court may take the time spent in custody into account by reducing the term of imprisonment or by backdating the commencement of that term. It is a condition of the application of s 87 that the offender has previously spent time in custody in respect of the offence for which he is being sentenced and for no other reason. If that criterion is satisfied, there remains a discretion to be exercised by the sentencing court. In Ratcliff v The Queen (Unreported, WASC Library No 980651, 3 November 1998), an offender had been granted bail but was re-arrested and taken into custody for breaching a term of the bail conditions that required him to stay away from the complainant. In those circumstances, the Court of Criminal Appeal found that it was within a proper exercise of the discretion of the sentencing judge to determine that it would be inappropriate to make any adjustment to the sentence to reflect the time already spent in custody.

50 The first period of time the appellant spent in custody was three or four days after the appellant had been charged with the first offence of breach of the violence restraining order and it took him three or four days to arrange a surety. A second period was from 9 to 21 December after the first offence of aggravated assault occasioning bodily harm and the second offence of breach of violence restraining order. He remained in custody until grant of bail on 21 December. The third period of time in custody was after he appeared in court on 15 January after committing the second offence of aggravated assault occasioning bodily harm, the third offence of breach of violence restraining order and the offence of breach of protective bail conditions. He did not apply for bail. It would have been a proper exercise of the sentencing magistrate's discretion not to make any allowance for that time spent in custody because he had breached a term of his bail conditions that required him to stay away from the complainant. The sentencing magistrate made no express reference to the previous time spent in custody by the appellant. On the other hand, the sentencing occurred immediately after the appellant's counsel's plea in mitigation in the course of which he made extensive reference to the time spent in custody by the appellant. In the circumstances, it will be necessary to look at the sentences imposed by the sentencing magistrate to see whether they demonstrate any error.

51 The third matter relied upon by the appellant is what is said to be his depressive illness.

52 A general practitioner reported on 13 December 2006 that when they saw the appellant in June 2006 they felt that the appellant was suffering from depression. The doctor saw the appellant again towards the end of November after the appellant had contacted the doctor's receptionist requesting an urgent appointment stating that he had had a 'nervous breakdown'. When the doctor saw the appellant on 22 November the appellant was beginning to feel somewhat better. The doctor says that subsequent events culminated in the appellant 'having what sounds like a panic-like attack' and the appellant had to be taken to the emergency department of Bunbury Regional Hospital. On 22 November the appellant requested some medication to try to alleviate any future anxiety attacks. In a further report of 30 January 2007 the same doctor said that the appellant had tried to make an appointment with him prior to the appellant breaching his bail conditions but he had not been able to get an appointment.

53 A psychological report was also prepared prior to sentencing on 5 February 2007. In the report the psychologist referred to the appellant's video assessment with a psychiatrist from Graylands Hospital soon after his appearance in court on 21 December 2006. The psychologist said that the results of that assessment were not available but that the appellant claimed that it contained nothing untoward, with it noting only that he was somewhat naïve in his understanding of the seriousness of the violence restraining order. The psychologist described the appellant as a reasonably intelligent and articulate, yet depressed man who was generally candid about his offences and his life situation. The psychologist observed that the appellant demonstrated some degree of obsessiveness related to his ex-partner, the complainant, and the injustice that he perceives has occurred as a result of his relationship with her. The psychologist suggested that the 'significant "acquiescent" manner demonstrated by the appellant during interview, and indicated in his comments concerning his relationships, is likely to have been a significant influencing factor in his offending behaviour'.

54 There is no clear diagnosis that the appellant was suffering from a recognised psychiatric illness at the time he committed all or any of the offences. However, the evidence shows that he was suffering from anxiety and depression during the period in which he committed the offences.

55 Depression or other mental conditions may be relevant to sentencing in a number of ways. It may reduce moral culpability in committing an offence. A sentence imposed on an offender suffering from psychiatric illness is not an appropriate vehicle to demonstrate general deterrence.

56 In his report the psychologist suggests that the appellant's 'acquiescent' manner is likely to have been a significant influencing factor in his offending behaviour. The psychologist refers to these personality or behaviour characteristics as having been developed in childhood. The psychologist says that the appellant has internalised significant levels of anger, with acrimony being directed outwardly towards the victim of the current offences. The psychologist suggests that the trigger to such an externalised expression of the appellant's anger was probably a combination of his psychological fragility together with the mix of his medication and alcohol.

57 The appellant's psychological condition offers some mitigation. On the other hand, it poses the danger that the appellant represents a continuing danger to the community by reason of the commission of further offences, particularly directed towards the victim of the offences for which he was convicted.

58 The sentencing magistrate expressly referred to the appellant's mental condition. There is no apparent error in the sentencing magistrate's approach to that matter.

59 The fourth matter relied upon by the appellant is his early pleas of guilty, co-operation and remorse. The sentencing magistrate expressly referred to the appellant's pleas of guilty. It has not been demonstrated that the magistrate failed to properly take those matters into account.

60 The fifth matter relied upon by the appellant is the irrelevant matters considered by the sentencing magistrate, that is the magistrate's reference to being alarmed at one of the references put to the court. I have already discussed this matter. The reference to this irrelevant matter requires the court to carefully scrutinise the sentences imposed to see if it may be inferred that the magistrate erred.

61 The final matter relied upon by the appellant is the magistrate's failure to consider and take into account sch 1 of Sentencing Legislation Amendment and Repeal Act 2003 (Amendment Act).

62 Schedule 1 of the Amendment Act by cl 2(1) requires a court sentencing an offender to imprisonment to impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions, that is the provisions of the Sentencing Act as they would have applied had the Amendment Act not come into operation, been in operation at the time of sentencing. Clause 2(5) of sch 1 provides that cl 2 does not apply if, amongst other things, the statutory penalty for the offence for which the offender has been sentenced has been amended since the new provisions commenced. Schedule 1 came into effect on 31 August 2003.

63 I will first consider the offences of assault occasioning bodily harm contrary to s 317 of the Criminal Code (WA) (Criminal Code). Section 317 was amended by Act No 38 of 2004 which was assented to on 9 December 2004. Before the amendment, s 317 provided that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and is liable if the person assaulted is of or over the age of 60 years, to imprisonment for 7 years, or in any other case, to imprisonment for 5 years. Section 317 was amended by Act No 38 of 2004 to provide that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and is liable if the offence is committed in circumstances of aggravation to imprisonment for 7 years or in any other case to imprisonment for 5 years. The circumstances of aggravation are defined by s 221 to include circumstances in which the offender is in a family and domestic relationship with the victim of the offence and applied to the offences for which the appellant was convicted.

64 The respondent submitted that the amendment of s 317 by Act No 38 of 2004 created a new offence of aggravated assault occasioning bodily harm. That may not be strictly correct. The relevant offence is that the appellant unlawfully assaulted another and thereby did her bodily harm. Those are the elements of the offence. That the appellant and his victim were in a domestic or family relationship is a circumstance of aggravation not an element of the offence. However, the new circumstance of aggravation made the appellant liable to imprisonment for 7 years whereas before the amendment he would have been liable to imprisonment for 5 years had he committed the same offence in the same circumstances. That is relevantly an amendment of the statutory penalty for the offence for which the offender was sentenced. The sch 1 provisions do not apply to the two convictions for assault occasioning bodily harm.

65 I next consider the offence of burglary contrary to s 401 of the Criminal Code. Section 401 was amended by Act No 70 of 2004. Before the amendment s 401(1) provided that a person who enters or is in the place of another person without that other person's consent, with intent to commit an offence in that place is guilty of a crime. The subsection provides that a person is liable to different penalties according to the circumstances. Section 401(1)(b) provides that a person is liable, if the place is ordinarily used for human habitation but the offence is not committed in circumstances of aggravation, to imprisonment for 18 years. The summary conviction penalty for the offence in those circumstances is 3 years' imprisonment or a fine of $12,000. The amending Act did not amend the maximum penalty of 18 years' imprisonment but amended the summary conviction penalty to imprisonment for 3 years and a fine of $36,000. Clause 2(5) of Sch 1 refers to the statutory penalty for the offence, not the summary conviction penalty. The statutory penalty for the relevant offence of burglary was not amended. The sentencing magistrate was obliged to apply the provisions of cl 2(1) of the Schedule.

66 The appellant was convicted of two counts of breach of a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). Section 61 was amended by Act No 38 of 2004 which came into effect on 30 November 2004. Before the amendment s 61(1) provided that a person who is bound by a violence restraining order and who breaches that order commits an offence the penalty for which was, if the duration of the order was 72 hours or less $2,000 or imprisonment for 6 months, or otherwise $6,000 or imprisonment for 18 months. After the amendment the penalty for breaching s 61(1) is $6,000 or imprisonment for 2 years. The statutory penalty for the offence of breach of a restraining order was amended and hence the sentencing magistrate was not required to apply the provisions of cl 2(1) of the First Schedule.

67 The remaining offence of which the appellant was convicted was failing to comply with a requirement of his bail undertaking under s 51(2a) of the Bail Act 1982 (WA). The statutory penalty for that offence was not amended after the sch 1 transitional provisions came into force. The magistrate was obliged to apply cl 2(1) of sch 1 to sentencing the offender for that offence.

68 The sentencing magistrate was required to take into account cl 2 of sch 1 in relation to the offences of burglary and breach of bail condition. The fact that the magistrate did not expressly refer to that matter requires the court to carefully examine the sentences imposed by the sentencing magistrate to see if they demonstrate error.

69 The appellant submitted that the sentence of 18 months' imprisonment for the first offence of aggravated assault occasioning bodily harm is manifestly excessive. In view of the matters I have earlier discussed it is necessary to consider whether the sentence discloses error by the sentencing magistrate in failing to have proper regard to any of the matters specified by the appellant in his grounds of appeal or alternatively reveal some undisclosed error.

70 The offence of aggravated assault occasioning bodily harm is serious, as demonstrated by the maximum penalty of 7 years' imprisonment. The appellant bit the complainant on her cheek, causing blood to spill onto her hand and blouse. The appellant committed that offence in circumstances where he was subject to a violence restraining order and where he had 45 minutes earlier approached the complainant and grabbed her by her arm at another hotel and the complainant had left. In those circumstances, a sentence of 18 months' imprisonment does not disclose any error. It cannot be inferred that the sentencing magistrate failed to have proper regard to the matters relied upon by the appellant.

71 The appellant submits that the sentence of 18 months' imprisonment is manifestly excessive. Manifest excess is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; excess is, or is not, plainly apparent. It is a conclusion which 'does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive': Dinsdale v The Queen (Gleeson CJ and Hayne J) [6].

72 I do not consider that the matters relied upon by the appellant demonstrate that the sentence imposed upon the appellant exceeded the limits of a sound exercise of the sentencing discretion. The objective seriousness of the offence, the need for general and particular deterrence and the necessity to meet the fundamental purpose of the punishment, namely the protection of society, indicates that the sentencing magistrate properly balanced the objective and subjective factors which the magistrate was required to take into account in exercising the sentencing discretion. The penalty imposed of 18 months' imprisonment was within the range of sound sentencing discretion.

73 The appellant did not make specific submissions in relation to the remaining individual sentences imposed. It has not been demonstrated that any of the other sentences imposed were manifestly excessive.

74 The appellant submitted that the aggregate sentence of 30 months' imprisonment was manifestly excessive. In the circumstances of this case it is necessary to consider whether the sentencing magistrate erred in making the sentences partly cumulative and partly concurrent so as to result in a total aggregate sentence of 30 months.

75 The respondent submitted that it is of significance that the offences were committed over a period of time, with the appellant arrested and bailed a number of times. Other than the burglary and the first breach of violence restraining order offence, all of the remaining offences were committed after being released on bail by a magistrate. The offences committed were against the same complainant and were effectively a continuation of the criminal conduct of the appellant against that complainant. Such offending behaviour was an aggravating factor to which the learned magistrate was entitled to give significant weight. In particular, the learned magistrate was entitled to take the appellant's behaviour in this respect into account in determining whether to exercise his discretion to accumulate the sentences wholly or partially: Pop v The Queen [2000] WASCA 283 [87] - [90] McKechnie J.

76 The respondent further submitted that in determining that the sentences for each of the offences of assault occasioning bodily harm were to be served cumulatively, one with the other, the learned magistrate correctly noted that the offences were distinct in time, place and circumstance. Where a number of offences arise out of what may be called the same transaction, in that they together constitute a single invasion of the same legally protected interest, then it is appropriate to order that the sentences of imprisonment should be served concurrently. Where the offences occur on separate occasions and involve separate transactions, the sentences should be imposed cumulatively unless the totality principle would require another approach: R v Ward [1999] WASCA 157, [9] (Malcolm CJ).

77 That requires the court to consider the totality principle.

78 In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308, McHugh J said:

The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved ... The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged ... Where necessary the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

79 In this case, the aggregate sentence is not an appropriate measure of the total criminality involved in the appellant's offending. The learned magistrate correctly noted that the offences were distinct in time, place and circumstances. However, they all arose out of the appellant's failed relationship with the complainant, the appellant's psychological condition and his psychological fragility referred to by the psychologist. In the circumstances, it was beyond the exercise of a sound discretion to partly accumulate the sentences with the result that the appellant received a total effective aggregate sentence of 30 months' imprisonment. The learned magistrate should have made all of the sentences concurrent whereby the appellant would have received a total aggregate sentence of 18 months' imprisonment.

80 For the reasons stated, I allow the appeal, set aside the sentences imposed for the aggravated assault occasioning bodily harm, breach of protective bail conditions and breach of violence restraining order all committed on 12 January 2007 in so far as those sentences were ordered to be served cumulatively upon the other sentences and order that those sentences be served concurrently with the other sentences imposed upon the appellant. The result is that the appellant will be sentenced to an aggregate sentence of 18 months' imprisonment and is eligible for parole.