GARLETT -v- BALIC [2016] WASC 172 (13 June 2016)

4 In relation to the assault offence, the prosecutor stated the facts as follows.

5 On 12 August 2015, Ms Garlett was in Murray Street Mall in Perth. Over a period of about 15 minutes, she shouted and swore at various people in the mall. The victim of the assault was sitting in the mall with friends drinking tea. Ms Garlett abused them, saying 'rich white bitches drinking tea and coffee'. Suddenly, without warning, Ms Garlett charged at the victim from behind and, with the full force of her body, pushed the victim in the back of the head, causing the victim's head to slam into the pavement in front of her making a loud banging noise. The impact caused the victim to fall off her chair, onto the ground, landing on the right side of her body. The victim got to her feet dazed, shaking, and in shock. The victim sustained a sore left temple, sore neck and nose and a swollen left eye for which she received medical treatment.[1]

6 Defence counsel stated, as was the fact, that the common assault charge had been downgraded from a charge of assault occasioning bodily harm. Counsel stated that Ms Garlett instructs that she pushed the complainant, but denied that the complainant had any injuries or anything of that nature afterwards.[2]

7 The magistrate indicated that a psychiatric report would be of assistance. In doing so, she observed that the matter did not appear to her to be a lower end common assault[3] and that it was not a case where Ms Garlett was being held in custody without bail in a situation where she would never be given imprisonment.[4]

8 The matter was adjourned until 11 April 2016 for a psychiatric report to be obtained. Ms Garlett was remanded in custody.

(1) Ms Garlett stated that on the day of the assault offence, she was very drunk;

(2) Ms Garlett stated that she had been drinking alcohol from about 17 and had been taking various illicit drugs for many years;

(3) Ms Garlett's court history included six assault occasioning bodily harm, five common assault, nine breach of bail, various drug offences, disorderly offences and other offences, breach of suspended sentence, and breach of ISO;

(5) the report outlined her personal history. She has been in a relationship characterised by significant domestic violence in the context of illicit drug use;

(6) the following clinical diagnosis was stated: mental and behavioural disorder due to cannabis dependence and stimulant misuse; a history of depressive symptoms in the context of stressful situations, currently in remission; antisocial personality disorder; history of cardiac and gastric illness; anger management, problem solving and coping difficulties; past trauma related to a history of domestic violence and separation from children; limited social support in the community;

(7) Ms Garlett does not suffer from a mental illness to explain her offending. Her offences occurred in the context of her underlying personality disorder, complicated by cannabis dependence and alcohol intoxication;

(8) Ms Garlett will benefit from counselling to address her past unresolved trauma, her underlying personality dysfunction and cannabis dependence;

(9) if a custodial disposition is provided, prison medical services and prison counselling services should be involved, including programs to address her impaired anger, problem solving and coping skills and drug counselling services;

(10) if a communitybased disposition is provided, Ms Garlett would need stable accommodation and counselling of the kind already referred to. Any communitybased order should include a condition of undergoing counselling and random urinary drug screens; and

(11) unless Ms Garlett takes more responsibility for her behaviours when under the influence, her risk of committing similar offences will remain an issue.

(1) these offences appear as a continued course of conduct reflective of her lifestyle issues;

(2) Ms Garlett appears as a recidivist offender who has incurred adult convictions for offences of theft, conduct disorder, drug use, traffic, serious assault and breaches of bail, violence restraining, supervision and suspended imprisonment orders;

(3) Ms Garlett's substance use, antisocial personality disorder, poor problem solving and poor emotional regulation skills have been identified as contributing factors in Ms Garlett's history of offending behaviour;

(4) previous dispositions including fines, community service orders, suspended imprisonment and terms of immediate imprisonment do not appear to have had the desired deterrent effect;

(5) the PSR summarised the risk factors identified in the psychiatric report;

(6) while Ms Garlett is considered to have significant treatment needs, her lack of stable accommodation, limited community support and social milieu that may not support change may restrict her ability to engage in a process of change. Nevertheless, the option of an order for community supervision remains open for the court's consideration. Should the court decide community supervision is an appropriate penalty, a program requirement attached to the order will facilitate Ms Garlett's referral to appropriate intervention services; and

(7) alternatively, if a term of immediate imprisonment is imposed, Ms Garlett may benefit from the monitoring and support provided by parole.

11 In the plea in mitigation, counsel for Ms Garlett:

(1) submitted that Ms Garlett's plea of guilty to the offence of common assault was at the earliest opportunity;

(2) emphasised that Ms Garlett had, by then, spent 130 days in custody;

(3) accepted that Ms Garlett's assault was serious, and involved an unprovoked attack on a stranger;

(4) stated that the only explanation for it was intoxication;

(5) submitted that the assault did not involve punching or kicking, was brief in duration and not of a sustained kind and could be seen as low to middle of the range of objective seriousness of offences of common assault;

(6) stated that the psychiatric report showed that both as a child and in her adult years Ms Garlett has been exposed to alcohol and substance abuse and been the victim of serious and repeat violent offending;

(7) referred to the decision of the High Court in Bugmy v The Queen[5] in submitting that those factors mitigated Ms Garlett's moral culpability for her offence; and

(8) submitted that taking into account the early plea of guilty, the fact that 130 days had been spent in custody, and the deprived background of Ms Garlett, that a term of imprisonment, suspended or otherwise, was not the appropriate disposition for the assault.

12 The prosecutor submitted that imprisonment, suspended or otherwise, would be an appropriate disposition. The prosecutor submitted that Ms Garlett's record included imprisonment for similar offences and showed that personal deterrence was required, saying that that could be incorporated with an intensive supervision order or otherwise. The latter reference to an intensive supervision order does not sit easily with the submission that imprisonment would be an appropriate disposition.

13 The magistrate's reasons included the following:

(1) Ms Garlett would be given a 25% discount for her plea of guilty in relation to the assault offence, that having been entered at the first reasonable opportunity;[6]

(2) Ms Garlett's record was not mitigatory and showed the need for personal deterrence;[7]

(3) this is a serious assault involving an unprovoked assault on a stranger from behind, observing that it was in that respect 'perhaps cowardly';[8]

(4) the material facts said that Ms Garlett charged at the victim from behind, pushed her in the back of the head causing her to impact heavily with the table, for her to fall off the chair, land on the ground and 'suffer some injuries: soreness to her left temple, soreness to her neck, nose and eye';[9]

(5) the offence is not at the lowest end of offending of its kind;[10]

(6) Ms Garlett is a 27yearold mother with two sons who are in the care of the department;[11]

(7) Ms Garlett has been the victim of substantial domestic violence;[12]

(8) the magistrate referred to the risk factors and treatment needs set out in the psychiatric report and presentence report;[13]

(9) the magistrate referred to the diagnosis in the psychiatric report of mental and behavioural disorder due to cannabis dependence, history of depressive symptoms, antisocial personality disorder, anger management problems, past trauma relating to a history of domestic violence and separation from her children, which the magistrate said she accepted were both significant matters;[14]

(10) alcohol abuse explained the common assault;[15]

(11) Ms Garlett had been in custody since 2 December 2015 and that was a substantial time for which she would be given full credit;[16]

(12) given all the information before the court, it would be very difficult for Ms Garlett to comply with any order and that being in the community would expose her to all the risk factors, meaning she would be at risk of reoffending;[17]

(13) the assault was serious and that imprisonment was the only appropriate option;[18]

(14) stated that taking into account all the matters referred to and the full 25% for the plea of guilty and where this offence sits on the scale of seriousness, found that the appropriate term was a term of 8 months' imprisonment;[19]

(15) stated that Ms Garlett would be unlikely to comply with a suspended imprisonment order when in the community and exposed to the substantial risk factors, including the temptation to use drugs and alcohol, referring to the fact that she has previously breached suspended sentence and intensive supervision orders;[20] and

(16) concluded that, accordingly, there would be a term of imprisonment of 8 months backdated to commence on 2 December 2015.[21]

(1) the magistrate erred in finding that the victim 'suffered some injuries'; and

(2) the sentence of 8 months' immediate imprisonment was manifestly excessive, both as to the kind of offence, and the length of the term.

15 The principles relevant to an appeal against sentence are well known and were not in dispute in this appeal. The principles were summarised in Wilson v The State of Western Australia.[22] Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either express or implied error. Express error involves acting on a wrong principle, for example by mistaking the law or facts, or taking into account an irrelevant matter or failing to take into account a relevant consideration. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

16 Ground 1 alleges an express error in the finding that the victim 'suffered some injuries'. Putting what the magistrate said into its context, the magistrate said as follows:

The material facts said she charged at the victim from behind, pushed her in the back of the head causing her head to impact heavily with the table, for her to fall off the chair, land on the ground and suffered some injuries: soreness to her left temple, soreness to her neck and nose and eye. Certainly my view is that it is not at the lowest end of such offending of its kind.[23]

17 Ms Garlett submits that the finding that the complainant suffered injuries was incorrect. In identifying the injuries referred to, the magistrate referred to soreness in various parts of the complainant's body. Pain or soreness in itself does not constitute an injury.[24]

18 Moreover, at the first hearing on 2 March 2016, counsel for Ms Garlett said that Ms Garlett denied that the complainant had any injuries or anything of that nature.[25] On appeal Ms Garlett submits that, consequently, it was not open to the magistrate to find that the complainant suffered any injuries unless the prosecution proved that beyond reasonable doubt, and the prosecution made no attempt to do so.

19 The respondent on the appeal accepts that the complainant did not suffer any injuries, and that it was not open to the magistrate to find that the complainant did suffer any injury. The respondent submits that, read in context, the magistrate was not using injury in its technical or correct sense. Rather, the magistrate was referring to the fact that the assault caused consequences for the complainant, namely soreness to various parts of her body that had been referred to. Consequently, the respondent submits, while the choice of the descriptor 'injuries' was infelicitous, it had no apparent effect on the sentencing process. For the reasons I explain below, I accept these submissions.

20 Ms Garlett submits that the magistrate's erroneous finding that the complainant suffered injuries is found in the context of her explaining why she does not accept the characterisation by counsel for Ms Garlett of the objective seriousness of the offence. Given the finding that the complainant suffered injuries was made in the context of the magistrate's assessment of the objective seriousness of the assault, Ms Garlett submits that the error was material to the sentencing process.

21 The magistrate's court is the court of summary jurisdiction dealing with a large volume of matters. Sentencing remarks will generally be given orally. They must be read as a whole, in their context and not with an eye finely tuned for error.[26]

22 While there is force in Ms Garlett's submissions, when the magistrate's reasons are read as a whole, I am satisfied that the magistrate's reference to the complainant suffering injuries had no bearing upon the sentence. It was and is not in dispute that, after the assault, the complainant had soreness to her left temple, and soreness to her neck, nose and eye. That was stated in the material facts read by the prosecutor, and not challenged by counsel for Ms Garlett. In assessing the gravity of Ms Garlett's assault, the magistrate was entitled to take into account that the assault, caused soreness to various parts of the complainant's body. In my view, that is all that the magistrate was saying. I am satisfied that the magistrate did not elevate the seriousness of the assault beyond that by characterising the soreness as injuries. Rather, I read the magistrate as using the word 'injuries' as a proxy, albeit an imperfect and perhaps unfortunate one, for 'consequences'.

23 That reading of the magistrate's reasons is reinforced by the fact that there is no other reference to injuries in the sentencing remarks. It is also reinforced by the fact that, immediately before the magistrate commenced the sentencing remarks, the prosecutor referred to the lack of any injury caused by the assault.[27] Thus, it was common cause that the assault had not caused any actual injuries.

24 For these reasons, while I would grant leave to appeal, I would dismiss ground 1.

Ground 2 - Was the sentence manifestly excessive? Legal principles

25 Ground 2 alleges the sentence of 8 months' immediate imprisonment was manifestly excessive.

26 An allegation of manifest excess is an allegation of implied error. It must be shown that a sentence of the length imposed is plainly unjust or unreasonable, and could not have been reached in the proper exercise of the sentencing discretion.

27 In determining whether a sentence is manifestly excessive, the sentence should be examined from the perspective of the maximum sentence prescribed for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the offending occupies in the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

28 The range of sentences commonly imposed provides guidance but does not mark the boundaries of a court's sentencing discretion in a particular case. That range provides a yardstick for ensuring broad consistency in sentencing, bearing in mind that there is no one single correct sentence and there is scope for significant variation in relevant sentencing factors.[28]

29 I start with the objective seriousness of the offence committed by Ms Garlett, and its place in the scale of offences of common assault.

30 There is no doubt that Ms Garlett's assault had serious elements. It was an unprovoked attack on a stranger from behind. Contact was made with the victim's head. It caused soreness to various parts of the victim's body. Ms Garlett's offence was by no means trivial and in that sense it was a serious offence.

31 However, Ms Garlett's offence did not involve any weapons. It did not involve punching or kicking. It was a single contact of brief duration, rather than a sustained attack. It was evidently spontaneous; there was no element of planning.

32 In my view, assessed on the scale of seriousness of offences of common assault, Ms Garlett's offence could be put no higher than somewhere approaching the middle of the range.

33 The maximum penalty for common assault is 18 months' imprisonment.[29]

34 The sentence imposed, 8 months, was approximately 45% of the maximum term of imprisonment. Thus the sentence was a very substantial one in the context of the statutory maximum. That is reinforced when regard is had to the mitigating factors that required a significant discount from the magistrate's starting point. (The one step instinctive synthesis approach to sentencing no longer applies when an offender pleads guilty, as there needs to be a starting point - the head sentence referred to in s 9AA of the Sentencing Act - to which the stated discount is applied.[30]) I will say something more about the mitigating factors before returning to the question of the magistrate's starting point.

35 The magistrate stated that Ms Garlett's plea of guilty was entered at the earliest opportunity and gave rise to a 25% discount.

36 The magistrate recognised other mitigating factors in Ms Garlett's favour. After referring to the diagnosis in the psychiatric report of mental and behavioural disorder due to cannabis dependence, history of depressive symptoms, antisocial personality disorder and anger management problems, the magistrate referred to Ms Garlett's past trauma relating to a history of domestic violence and separation from her children.[31] The magistrate accepted that those were significant matters. For the reasons I explain immediately below, I agree with the magistrate's view that these matters were significant.

37 The same sentencing principles apply in every case, regardless of an offender's ethnicity. But where a person's ethnicity gives rise to disadvantage or hardship, that is a relevant matter to be considered in the sentencing process.[32]

38 An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a nonAboriginal offender may mitigate that offender's sentence.[33]

39 Drunkenness does not usually operate to mitigate an offender's conduct. However, there are Aboriginal communities in which alcohol abuse and alcohol related violence go hand in hand. Where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. That involves acknowledging the endemic presence of alcohol in Aboriginal communities and:

The grave social difficulties faced by those communities where poor selfimage, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.[34]

40 The passage of time or repeat offending do not necessarily diminish the effects of earlier profound deprivation.[35]

41 An offender's deprived background does not necessarily have the same mitigatory relevance for all purposes of punishment. An offender's exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated in a way that means the offender's moral culpability for the inability to control an impulse is substantially reduced.[36] However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[37] Further, the personal disadvantages affecting an individual offender may, because of the circumstances in which they were engendered, be so deep and so broad that they shed light on the risk of reoffending.[38]

42 Ms Garlett's personal history, revealed in the psychiatric report and referred to in submissions before the magistrate, gave rise to considerations of this kind. The psychiatrist's report included the following:

• her father was violent when drunk;
• there was a family history of alcohol and cannabis abuse;
• Ms Garlett had significant behavioural problems as a child;
• she lived a life on the streets from about 17 involving abuse of alcohol, cannabis and amphetamine;
• she had an on and off domestic relationship for about 10 years involving family violence and codependent drug and alcohol misuse;
• her two children were removed into State care;
• she suffered periodic episodes of depression and a suicide attempt, associated with her past traumas including her separation from her children.[39]

43 I accept Ms Garlett's submission that the circumstances of her offence suggest an impulsive drug and alcohol fuelled outburst of anger rooted in frustration and alienation from society. Before she assaulted her victim, Ms Garlett abused her, calling her a 'rich white bitch'. Ms Garlett's deprivation and trauma arising from her history of experiencing domestic violence, substance abuse and separation from her children does not excuse what she did. However, those circumstances provide the context in which the criminality of her conduct must be assessed.

44 For these reasons, I agree that the trauma associated with Ms Garlett's history of domestic violence, substance abuse and separation from her children were significant matters.

45 In light of that, it is appropriate to give some attention to the question of the magistrate's starting point. As I have said, the magistrate gave a 25% discount on the starting point for the plea of guilty. The magistrate did not identify her starting point, and, on the authorities, was not obliged to do so.[40] Where multiple mitigating factors are present and where no starting point is identified, it is not possible to work backwards from the result, and the stated discount for plea of guilty, to identify a particular starting point.[41] Nevertheless, some observations can, I think, be made.

46 A starting point of 12 months would mean the discount for the plea of guilty was 3 months, leaving a discount of 1 month for the other mitigating factors, in particular the trauma, disadvantage and other personal factors I have mentioned. In that light, while mathematical precision is neither possible nor appropriate, broadly speaking it is difficult to see how the magistrate's starting point could have been anything less than 12 months.

47 In the context of a statutory maximum of 18 months, a starting point in the order of at least 12 months is a high one. In my view, the objective seriousness of Ms Garlett's offence could not justify a starting point of 12 months or more.

48 Case law does not reveal an established range of sentences customarily imposed for offences of common assault. That is because, as Martin CJ has observed,[42] there is an enormous variety of circumstances in which the offence of common assault can be, and is, committed.

49 There is very little case law dealing with appeals against sentence for offences of common assault under s 313 of the Code. Further, many of those cases deal with aggravated common assault for which the maximum is a term of 3 years' imprisonment.[43] There are even fewer cases dealing with (unaggravated) common assault under s 313(1)(b).

50 No doubt it was for that reason that in Bropho v Hall,[44] in an appeal against sentence for aggravated common assault, Mitchell J made reference to decisions concerning offences of assault occasioning bodily harm, for which the maximum penalty is either 5 years, or in cases of aggravated offences, 7 years. His Honour referred to a number of decisions in which sentences were imposed and upheld in the range of 10 months to 18 months.[45]

51 It does not seem to me that the limited case law, such as it is, provides any significant assistance in the assessment of whether the sentence imposed in this case was manifestly excessive. Ms Garlett points to several cases in which noncustodial sentences were, on appeal, imposed for offences of common assault.[46] While these cases had some features with parallels to the present case, it seems to me there are too many differences in the circumstances of the offence and in the personal circumstances of the respective offenders, for the cases to provide any significant assistance. Moreover, two or three cases do not constitute a range from which reliable guidance can be provided.

52 I think the same observations can be made about the cases on which the respondent relied.[47] For example, the respondent points to Bropho, in which the court accepted the offender's concession that immediate imprisonment was open. However, Bropho concerned an aggravated common assault that occurred in a domestic setting. As Mitchell J explained, that significantly aggravates the seriousness of the assault.[48]

53 The respondent also relied on Morgan v Kazandzis.[49] In Morgan, the offence of common assault was committed in conjunction with assaults occasioning bodily harm. Moreover, the offence of common assault was committed in circumstances of aggravation, namely in a domestic relationship. The offender was a 42yearold man assaulting a 15yearold girl whom he had previously assaulted.

54 In Esh v Cooper, the offender behaved aggressively to the victim while they were in a hotel. The offender and others followed the victim after the victim left the hotel. The offender punched the victim causing him to fall to the ground. Other offenders then punched and kicked the victim. On appeal, Hasluck J found that the magistrate was justified in characterising it as a serious offence because the blow was the final stage of a persistent course of aggressive conduct.

55 At the time of sentencing by the magistrate, Ms Garlett had spent 130 days in custody. In my opinion that fact bore heavily on the question of whether any term of imprisonment was justified.

56 While the need for both personal deterrence and general deterrence plainly arose from Ms Garlett's offence in the context of her criminal record, in my view those objects were sufficiently advanced by the period of more than 4 months already served by Ms Garlett by the time she was sentenced.

57 In my opinion, in the circumstances I have outlined, taking into account in particular:

(1) the proper characterisation of the objective seriousness of Ms Garlett's offence and the place it occupies in the scale of offences of common assault;

(2) her plea of guilty at the earliest opportunity;

(3) her disadvantaged background, the trauma associated with her history of domestic violence, substance abuse and separation from her children, and the ongoing effects of those matters; and

(4) the fact that Ms Garlett had spent over 4 months in custody;

it was not reasonably open to impose a term of imprisonment.

58 For these reasons, I would grant leave to appeal and uphold ground 2.

(1) grant leave to appeal and uphold the appeal on ground 2;

(2) set aside the sentence imposed by the magistrate.

60 I would hear further from the parties as to the appropriate sentence to be imposed.

[5] Bugmy v The Queen [2013] HCA 317; (2013) 249 CLR 571.

[22] Wilson v The State of Western Australia [2010] WASCA 82 [2].

[24] Thwaites v The State of Western Australia [2004] WASCA 197 [71] [75].

[26] Hull v Castledine [2005] WASC 252 [18].

[28] Nembousse v The State of Western Australia [2015] WASCA 68 [16] (McLure P, Mazza JA agreeing).

[30] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [80]; Seeto v The State of Western Australia [2014] WASCA 221 [65] [66].

[32] Neil v The Queen [1982] HCA 55; (1982) 149 CLR 305, 326; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [50].

[34] R v Fernando (62 63); Bugmy [38].

[38] Munda v The State of Western Australia [52]; The State of Western Australia v Upkett [2013] WASCA 263 [70].

[40] Forkin v The State of Western Australia [2013] WASCA 111; compare Seeton [67] [69].

[42] Harrison v Hunter [2012] WASC 166 [26].

[44] Bropho v Hall [2015] WASC 50.

[46] Evans v Richards [2015] WASC 53; Harrison v Hunter [2012] WASC 166; Wungundin v Barndon [2013] WASC 28.

[47] Morgan v Kazandzis [2010] WASC 377.; Esh v Cooper [2009] WASC 122; Ugle v Wells [1999] WASC 21.