GRIFFITHS -v- PROCOPIS [2012] WASC 40 (2 February 2012)

4 The facts were not disputed. They are as follows. At 2.20 am on the morning of Sunday, 9 October 2011, the appellant was at a Perth nightclub with some friends. The complainant, a 26yearold male, left at about the same time. Whilst standing on the pavement outside the nightclub, the appellant approached another man and began to verbally abuse him. The complainant walked past the appellant and ushered the other man away.

5 The appellant then punched the complainant three times in quick succession to the back of his head. The complainant swung around to face the appellant and held his hands up to protect himself. As the complainant was backing away, another man, said to be a companion of the appellant but never identified, stepped forward and punched the complainant to the face. This caused the complainant to stumble backwards.

6 The appellant then punched the complainant twice more to the head. These punches caused the complainant to fall backwards to the ground. Whilst the complainant was lying on his back, the appellant stepped forward and kicked him in the head. The complainant attempted to stand up and the appellant grabbed his head and kneed him twice to the head.

7 The appellant then moved about three metres away. At this point, the complainant was trying to lift himself from the ground. The appellant then ran up and kicked the complainant again to the head. The last blow caused the complainant to lose consciousness. He fell to the ground and did not move.

8 The appellant and his companions ran away. No attempt was made to check on the welfare of the complainant or render him any assistance. The complainant remained unconsciousness for approximately two minutes. He was taken to hospital by ambulance.

9 As a result of the attack, the complainant suffered a broken nose, two black eyes, a cut, swollen bottom lip, a large lump to the back of his head and concussion. He underwent surgery to repair his broken nose and experienced pain and discomfort following the attack.

10 The incident was captured on closedcircuit television. That recording was played in the Magistrates Court and it has also been viewed by me. It accords with the facts I have referred to. There was initially an objection made to the magistrate viewing the recording, but her Honour saw no merit in that objection and, in my view, she was correct in that regard. It is evident from the CCTV footage that the appellant was the aggressor and that this was an unprovoked attack and the magistrate made findings in that regard.

11 There was also a victim impact statement, photographs of injuries and a medical report. The victim impact statement that was tendered to her Honour states in part:

As a result of the attack, I was taken to hospital in an ambulance. I was unable to work for two weeks. I had to undergo a general anaesthetic for an operation to fix my nose and suffered severe nose bleeds every day leading up to the surgery. I was unable to play any sport for eight weeks, which is a large part of my life and I have been worried about the long term effects that such severe concussion can cause. This incident was a traumatic experience and I still do not understand how or why this happened.

12 Both oral and written submissions were made on behalf of the appellant by counsel who represented him before the Magistrates Court. In mitigation it was submitted that a sentence other than immediate imprisonment was open. It was submitted that the appellant was a young man, being 19 years old, and came before the court without an adult record. He was in full employment, having completed an apprenticeship as a tiler. He was living with his parents, who would continue to support him and provide him with a place to live.

13 It was submitted to the magistrate that the appellant had committed the offence whilst under the influence of alcohol and that he had since taken steps to limit his alcohol consumption. This subsequently came to involve submitting himself to counselling. It was submitted that the offence was out of character, and references were provided that referred to the appellant as being respectful, considerate and well mannered. One of the references stated that the appellant had expressed regret and shock for his actions on the night in question.

14 The prosecution submitted that the only appropriate sentence was one of immediate imprisonment. In particular, the prosecutor referred to the attack as being 'savage and unprovoked'. There was also reference to the callous disregard shown by the appellant for the complainant.

15 The submissions on sentence were made on 22 December 2011. The matter was then adjourned to 30 December 2011. This was done in order for the prosecution to obtain and provide to the magistrate any statement made by the complainant.

16 The complainant's witness statement was handed up to the magistrate on 30 December 2011. It is not clear whether her Honour read it, but it was before her and it has been provided to me. It confirms that the attack was unprovoked and, indeed, unexpected.

17 After viewing the CCTV in court on 30 December 2011, the magistrate proceeded to impose sentence. After referring to the material that was before her and the admitted facts, her Honour stated that in her view the only possible outcome was a sentence of imprisonment. Her Honour then said:

There are a number of matters that I need to consider in relation to a term of imprisonment.

The first of those is obviously that you have entered a plea of guilty at the earliest opportunity, that you have no record, that you do have employment and that you are a young person. The other side of the equation in relation to sentence is that this one is an unprovoked attack. It was fairly callous. You ran, you left the person unconscious on the ground. The other people that you were with participated to some extent in this assault, and they have not been identified by you.

In relation to the injuries to the victim, Mr Eastern, he suffered significant injuries, albeit they could have been far more serious, and we've all seen examples of that in the press, but the result of this attack was that he suffered significant bruising, he suffered a broken nose which had to be fixed with surgery and he was knocked out and concussed and spent some period of time in hospital. Certainly the photographs that have been provided to the court show significant bruising to the man's face, cuts in relation to his mouth, and the victim impact statement speaks of his requirement to reattend at the hospital and have his nose reset, and the impact of the concussion that he suffered on the night.

In regard to your behaviour I can only assume that you had far too much to drink and you were not thinking as you would normally and you did not obviously think through the consequences of your actions on this particular evening. Drinking is no excuse for very poor behaviour and there is nothing mitigatory in what you did in relation to that. You punched this person, you kicked him. He was unconscious. You ran off.

You left him and left other people to pick up the pieces of your very poor behaviour and very poor decisionmaking. In those circumstances, as I have indicated, a term of imprisonment is warranted. Having come to that view, I need to consider whether that should be suspended or whether it should be an immediate term of imprisonment, and it is my view that is should be an immediate term of imprisonment.

There needs to be general deterrence in relation to behaviour of this sort and it is my view that the only appropriate sentence is an immediate term of imprisonment. I intend to impose 14 months' imprisonment. You will be eligible for parole (ts 3, 4).

Ground 1 - Was the sentence manifestly excessive?

18 The general principles on which an appellate court operates are well known: See Wilson v The State of Western Australia [2010] WASCA 82 [2].

19 A ground of appeal that asserts that a sentence is manifestly excessive is a complaint of implied error, that is, whilst there may be no express error that can be identified, it is said that the sentence imposed was inappropriate, having regard to all the circumstances, such that it can be inferred that the Magistrate erred in the exercise of her discretion.

20 To determine whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentences customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of this type and the personal circumstances of the offender: See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

21 The maximum penalty for an offence of assault occasioning bodily harm is five years. This is the relevant maximum to take into account. The fact that a magistrate can only impose a maximum of 2 years' imprisonment is merely a jurisdictional limit: See Wiltshire v Mafi [2010] WASCA 111.

22 As to the standards of sentencing customarily observed for offences of this type, it is difficult to discern a usual sentencing range. In Holden v The State of Western Australia [2009] WASCA 50, Wheeler J referred to sentences being imposed for this offence following a plea of guilty of between 6 months' suspended imprisonment to 2 years' immediate imprisonment. A range, even if one can be determined, does not set the boundaries of sentencing discretion. In any event, it is clear that a wide range of sentences has been imposed for offences of this type. That is very significantly because the offence can involve a wide range of circumstances. Factors which may be relevant include the manner and duration of the assault, whether there was any provocation and the nature of the injuries inflicted.

23 I have had regard to the cases referred to by Buss JA in The State of Western Australia v Cheeseman [2011] WASCA 15 [73] [79]. I also recognise that it is important to have regard to personal circumstances when considering whether cases are comparable.

24 The prosecution has referred to a number of comparable cases. I would note, in particular, Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; Johnson v Hayter [2001] WASCA 118; Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 and Wiltshire v Mafi. Whilst there are some differences with these cases, such as the number of charges or extent of injuries, there are some features in the present case that are in some respects more serious.

25 Taking into account all of the circumstances of the appellant's conduct, it is not possible to say that the sentence imposed here was outside the appropriate discretionary range, either as to type or length of sentence. Whilst there were factors personal to the appellant that were in his favour, there were other factors that weighed against him, foremost amongst these were the circumstances of the offending.

26 The factors which aggravated the conduct were as follows:

(2) the assault involved multiple blows of different types, including five punches, two kneeings and two kicks;

(3) the blows were all aimed at the head, carrying with them the risk of serious harm. Three of the punches were aimed at the back of the head;

(4) the first blows were to the back of the complainant's head when he was facing away. They were clearly unexpected and the appellant then pressed his advantage before the complainant had any real opportunity to recover or defend himself;

(5) despite the fact that the complainant was clearly at a disadvantage and offered no retaliation, the appellant continued to attack him, including when he was down on the ground. This was not merely violent and aggressive conduct, it was also cowardly and inexcusable;

(6) the final kick was delivered with such significant force that it rendered the complainant unconscious. He was trying to get up at the time and was clearly no danger at all to the appellant or anyone else. Having watched the CCTV footage, I can only describe what occurred as a shocking explosion of violence;

(7) the appellant then fled the scene. It must have been apparent that the complainant was injured. No thought was given to his welfare;

(8) the injuries, whilst not of the most serious type imaginable, were serious enough to hospitalise the complainant, cause him to have an operation and to affect his life adversely. Indeed, it could have been much worse.

27 There was nothing which could be said to mitigate the criminal conduct.

28 There were personal factors, however, that needed to be taken into account. Those factors are referred to in the appellant's submissions. In particular, I have had regard to the fact that the appellant was 19 at the time he committed the offence; that he did not have a relevant criminal history; that he pleaded guilty at the earliest opportunity and thereby expressed genuine remorse and contrition, also showing that he was willing to assist in the administration of justice and accepted full responsibility for his actions; that the appellant was in fulltime employment, having finished his apprenticeship in floor and wall tiling; that the appellant wrote a letter of apology to the victim on 22 December 2011 and that the appellant was supported by his family, with whom he lived.

29 The appellant submits that when those factors are taken into account it is apparent that the sentence imposed was manifestly excessive. I am unable to agree.

30 The personal factors are important and they deserve weight. The appellant is indeed fortunate to have a supportive family and his past good character is to his credit. His youth was a significant factor; it is no small thing to send a young man to prison and no court would do so lightly. But all these things cannot shield a person from the consequences of their actions. In some cases, those actions are so serious that notwithstanding youth, family support and good character, a prison sentence is called for. In my view, this was such a case.

31 The circumstances of the offending as described were of such seriousness that it was clearly open to the magistrate to come to the view that a suspended sentence was inappropriate, notwithstanding the favourable personal circumstances.

32 I am also unable to conclude that a sentence of 14 months' imprisonment was manifestly excessive. The circumstances of this offence were such that a sentence of that duration was within the appropriate discretionary range available to the magistrate.

33 For those reasons, ground 1 cannot succeed and I refuse leave in respect of it.

Ground 2 - Did the magistrate fail to properly consider a suspended sentence?

34 It is contended that the magistrate made an express error in that she failed to take into account all of the relevant circumstances, in particular those personal to the appellant. This conclusion is said to flow from the final comments of the magistrate. It is submitted that it can be inferred from her reference to general deterrence that this was the only factor that she took into account.

35 There is no doubt that in deciding whether to suspend a term of imprisonment, a sentencing court must revisit and take into account the same considerations that were initially considered. See Collins v The State of Western Australia [2007] WASCA 108 [13] [16] (McLure J).

36 In Dinsdale v The Queen [2000] HCA 54; (2002) 202 CLR 321, Kirby J held that there was twostage process required by a provision such as s 76 of the Sentencing Act 1995 (WA). The first stage involves looking at all the relevant factors to determine whether a sentence of imprisonment is the only appropriate option. The second stage involves examining all the same considerations again to determine whether suspension is appropriate.

37 Consideration of the factors again does not require articulation of that consideration. It does not follow that because a magistrate has not specifically repeated the considerations that they have not been taken into account in determining whether a suspended sentence is appropriate. In some cases, the factors favouring suspension are so weighty that a failure to refer to them may lead to an inference that they have been overlooked or ignored. However, I am unable to draw that inference here.

38 The magistrate had only moments earlier referred to the personal factors and it is unlikely that she overlooked them. Nor was this a case which was so finely balanced that more detailed consideration of the suspension question might have been expected.

39 In any event, even if the magistrate did err, this ground could only succeed if it was established that there was a substantial miscarriage of justice: See Criminal Appeals Act 2004 (WA) s 14(2). In the context of a sentencing appeal, that is taken to mean whether the Appeal Court would have exercised the sentencing discretion differently: Powell v Tickner [2010] WASCA 224 [116] (Buss JA).

40 Having considered all the relevant factors, I have reached the conclusion that I would not have exercised the sentencing discretion differently. Accordingly, this ground cannot succeed.

41 Leave in respect of ground 2 is refused and the appeal is dismissed.