HARRISON -v- HUNTER [2012] WASC 166 (30 April 2012)

3 Returning to the statement of material facts, the allegation which was accepted by the appellant was that at about 6.30 pm on Friday, 16 September 2011, the appellant was at the residence in Forrestfield where he lived with the complainant and their daughter. He had finished work early that day and had consumed alcohol at the work site and then at a local hotel before returning home.

4 He entered the house and went into the lounge room where the complainant was sitting on the floor using her computer. An argument ensued about the use of the computer, which resulted in the appellant becoming angry. He smashed the computer by kicking and stomping on it. That in turn caused the electric power supply to the house to be terminated, leaving the house in darkness.

5 The appellant left the room and retrieved a headlight from the main bedroom in order to illuminate the area. The appellant went into the kitchen where he saw the complainant standing next to their daughter's highchair holding their daughter in her arms. He approached the complainant and the argument continued. In the course of the argument, the appellant hit the complainant once with the bottom of his closed fist, striking her in the right forehead in a downwards swinging motion.

6 There is no suggestion that any form of injury was caused as a result of the blow. The appellant left the room and went to the front of the house in order to restore the power supply to the house. The complainant left the house and went into the backyard. The appellant successfully restored the power supply and went back inside the house.

7 From there he went to the backyard where he again approached the complainant and told her to return to the house. She complied with that request and went inside, standing next to the front door where the argument continued, on this occasion with the appellant in the lounge room approximately 5 metres from the front door. While there, the appellant continued to kick the computer. The complainant left the house and went to a neighbour's house. The police arrived a short time later and the appellant was arrested and taken into custody. As I mentioned, the appellant pleaded guilty to the charge of aggravated common assault at the earliest opportunity.

8 I now turn to the appellant's personal circumstances. He was at the time of the offence, a man of 26 years of age. He was in regular employment and was the sole provider for his partner and their child, with whom he was living at the time of sentence. Perhaps the most relevant aspect of the appellant's personal circumstances is his prior criminal record. It is extensive and, most significantly for the purposes of this appeal, it includes two convictions for assault occasioning bodily harm and one conviction for common assault. It is trite to observe that the appellant's prior record cannot be an aggravating factor. Its significance in this case is the insight it provides into the appellant's behaviour, his response to previous noncustodial sentences, and his prospect of rehabilitation.

9 Because of their relevance to this appeal, it is appropriate for me to refer in a little detail to those prior convictions. The first in point in time was a conviction for common assault as a result of an offence which took place on 27 October 2003 when the appellant was 18 years of age. There was an altercation which occurred during an attempt by the appellant to recover moneys that were loaned to him, in the course of which he struck the complainant to the right side of the face with his clenched fist. He was fined $750 after pleading guilty to that offence.

10 The next offence in point in time was assault occasioning bodily harm, committed in January 2004. On 6 January 2004, the appellant attended the house of the complainant in Armadale. The complainant was a 70yearold pensioner. As a result of an altercation arising from a domestic dispute, the appellant pushed the complainant. There was a struggle and both the appellant and the complainant fell to the ground. In the course of the struggle, the appellant punched the complainant to the face several times with his right fist. For that offence, the appellant was fined $1,500.

11 The third offence of assault was an offence of assault occasioning bodily harm committed in April 2009. The offence arose from a party which the appellant attended. A dispute arose between the appellant and another male attending the party. Because of the dispute, the two faced off, and the accused pushed the complainant over. The appellant then threw a beer bottle at the complainant while the complainant was on the ground. The bottle struck the complainant in the head causing a small laceration which did not require medical attention. For that offence, the appellant was fined $3,000.

12 As I mentioned, the appellant also has an extensive record involving other offences, most notably driving offences, including driving while under the influence of alcohol. The net result of those offences was that ultimately the appellant was sentenced to a term of 6 months and 1 day imprisonment, suspended for a period of 12 months from July 2010. That period of 12 months passed without any further offence being committed by the appellant, but it is notable that the offence of aggravated assault that is the subject of the appeal before me was committed some months shortly after the expiry of the period of the suspended term of imprisonment.

13 The sentencing remarks made by the magistrate at the time of passing sentence are also before me and I will refer to them. She referred to the relationship between the appellant and the complainant and the dependence of the complainant and their daughter upon the support provided by the appellant. The magistrate observed that the appellant was only 26 years of age, but she described his record as being demonstrative of 'a life completely out of control'; and the appellant as 'someone who is just prepared to act on their own wants, needs and impulses and continue to defy the law'.

14 There is, of course, an understandable tendency for magistrates imposing sentence to use language that will reinforce to the person who is being sentenced the significance of their conduct and the need for changes in their behaviour. However, the language used by the magistrate in this case, although perhaps chosen to serve the objective to which I have referred, appears to me to somewhat overstate the significance of the appellant's prior criminal record, extensive though it is. The record does not include any offence which resulted in a period of imprisonment to be immediately served. No offence previously committed by the appellant was regarded as sufficiently serious to justify that disposition.

15 The magistrate went on to describe the appellant's behaviour on the day that gave rise to the charge before her as 'absolutely atrocious'. She said it was reprehensible for the appellant to be punching his partner in a vulnerable area of her body, her head, let alone when she was holding their disabled daughter in her arms. Again, the use of language of that character may well be motivated by the objective to which I have referred, but the offence committed by the appellant on this occasion could not be said to be in the upper range of seriousness of offences of aggravated common assault, given that it was a single punch, no weapon was involved and the blow was delivered in the heat of an argument. I do not overlook the fact that the assault was not provoked, which is a significant factor, but that aspect of the offence does not take it into the upper range of seriousness.

16 The magistrate then referred to the presentence report which she accurately described as not being positive and which asserts that the appellant had limited acceptance of responsibility or demonstration of remorse. That assertion had to be balanced against the fact that the appellant had pleaded guilty at the earliest opportunity, which itself provides some evidence of remorse.

17 The magistrate went on to observe that the recommendation of community justice was that the appellant was not suitable for a community based order. With respect to the magistrate, it is very difficult to construe the presentence report that way. The presentence report was not particularly helpful in terms of the disposition which was recommended, but it is unnecessary for me to consider that issue any further because the only ground of appeal is manifest excess; a ground which relies upon implied error not express error. The matters to which I have referred in the magistrate's remarks are not relied upon as providing an express error which creates a basis for upholding this appeal.

18 The magistrate then referred again to the appellant's extensive record and said that she had taken into account the number of opportunities that the appellant had been given to address his offending. In this context, the magistrate observed that although the appellant had been given the benefit of a suspended imprisonment sentence in the past, it had not been sufficient to encourage him to 'start complying with the law and start acting like a grown up'.

19 I digress to observe that another aspect of the sentence of suspended imprisonment previously imposed on the appellant that should have been taken into account by the magistrate was the fact that the period during which the sentence was suspended had been a period during which the appellant had not reoffended. Put another way, the appellant had successfully completed the term of suspension and shown his ability to respond to the incentive which a term of suspended imprisonment provides for lawful behaviour.

20 The magistrate went on to conclude that a term of imprisonment was the only appropriate sentencing disposition on the grounds of specific and general deterrence. She went on to say that she had once again gone back and revisited all the things that she had spoken about to decide whether or not it was appropriate for the term of the sentence to be suspended, but concluded that the lack of prospects of rehabilitation, the risk of reoffending and the appellant's prior record led her to conclude that a term of immediate imprisonment was the only appropriate disposition.

21 Before I leave my discussion of the magistrate's sentencing remarks, I should observe that following the sentence, the appellant engaged the magistrate in conversation and asserted that he was the sole provider to his family, and that he was trying to sort out the relationship he had with the complainant. He went on to say that he had done something that he should never have done and that he was truly ashamed of what he had done.

22 So in the proceedings before the magistrate there was some clear evidence of remorse and demonstration of some insight into the circumstances that had given rise to the offending, albeit that the most cogent evidence of that occurred after the magistrate had announced the sentence.

23 There is only one ground of appeal and that is that the sentence was manifestly excessive. The principles governing a ground of appeal on that basis are well established. These principles include that when a ground of appeal is brought on the basis of manifest excess, the court is required to look at the maximum sentence prescribed by law, the standard of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and to the appellant's personal circumstances (Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232, [12] [13] (McLure P)).

24 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 to that in which the sentencing judge exercised his or her discretion. Authority for that well established proposition can be found in the decision of the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. The error is to be implied from the length of sentence imposed and the error that must be established is that a sentence of the nature or length imposed could not have been reached by the court in the exercise of proper sentencing discretion (Royer v The State of Western Australia [2009] WASCA 139, [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J)).

25 In order to determine if the sentence is of that kind, it is necessary to view the sentence in the light of the maximum penalty and the various other factors to which I have already referred. The maximum penalty for the offence of aggravated assault is a term of imprisonment for 3 years and a fine of $36,000: see Criminal Code (WA) s 313(1)(a).

26 The authorities dealing with offences of assault, including offences of common assault, demonstrate the unsurprising proposition that there is no established range or tariff for such offences because of the almost infinite variety of circumstances in which offences of that kind are likely to be committed.

27 Section 6(1) of the Sentencing Act 1995 (WA) (Sentencing Act) requires any court in Western Australia imposing sentence to provide a sentence that is commensurate with the seriousness of the offence. The offence committed by the appellant in this case was serious. Domestic violence is an offence that rightly provokes community condemnation and rightly requires courts to respond to the community abhorrence of such offending by imposing sentences that are commensurate with the seriousness with which the community rightly regards this type of offence.

28 The appellant's prior record made it difficult for any significant mitigation to be provided beyond that which must necessarily accompany his early plea of guilty. I, therefore, accept that the magistrate was correct to conclude that a term of imprisonment was the only appropriate sentencing disposition for an offence of that kind and I conclude also that the term of imprisonment imposed of 8 months was within the range of periods of imprisonment open to the magistrate. Counsel for the appellant does not submit to the contrary, either with respect to the imposition of the term of imprisonment or as to the length of the term imposed.

29 The next question that the magistrate had to address in the twophase process that has been described by the High Court in a number of cases (see, for example, Dinsdale v The Queen) was the question of whether the sentence should be suspended. At that point of the process, considerations of mercy and rehabilitation can be significant factors.

30 In this particular case, it was necessary, I think, for the magistrate to take account of the fact that the offence with which she was dealing was not in the most serious or, I would say, even in the upper end of the range of offences of aggravated common assault for the reasons that I have already given.

31 It was also appropriate for the magistrate to take account of the remorse which was implicit in the early plea of guilty. Further, it was important for the magistrate to take into account the fact that the imposition of a previous term of suspended imprisonment had been successful in preventing the appellant from reoffending during the term of suspension, albeit that he had reoffended a few months after the expiry of that term.

32 It was also significant for the magistrate to take account of the fact that the appellant was living in a permanent relationship with the complainant and that the denunciation, which the community rightly expects of conduct of the kind committed by the appellant, was achieved by the imposition of a sentence of imprisonment of 8 months.

33 In that context it was necessary for the magistrate to give active consideration to rehabilitation, not only because the interest of the community is best served by the rehabilitation of offenders, but also because of the particular interest of the complainant and her child in a circumstance in which she was cohabiting with the appellant. Their best interests were served by a penalty which would create the most favourable opportunity for the appellant to develop insight into the factors that were causing his aberrant behaviour and develop means of addressing the circumstances that gave rise to his previous offending behaviour.

34 A term of imprisonment to be immediately served provides little opportunity for rehabilitation of that kind because it breaks the relationship between the appellant and the complainant. It removes the appellant from a situation in which any of the circumstances that are likely to cause his offending behaviour will occur and therefore denies him any opportunity to develop insight into those circumstances, means of addressing those circumstances or behavioural patterns that reduce the risk of reoffending behaviour.

35 These considerations are of the kind that have given rise to the family domestic violence programmes offered in some courts, albeit that this appellant was not able to take advantage of that programme. The imposition of a term of suspended imprisonment has significant advantages in terms of rehabilitation by providing a known and immediate sanction for further breach and thereby provides a favourable circumstance for rehabilitation to occur.

36 In the particular circumstances of this case, the magistrate erred by not concluding that the imposition of a term of suspended imprisonment reflected the most appropriate balance between the need to impose a sentence that was commensurate with the seriousness of the offence, to denounce conduct of the kind that the community will not accept, whilst providing the most favourable opportunity for the appellant to rehabilitate himself in the interests of the community and in the particular interests of the complainant and their daughter. For that reason, I will uphold the appeal.

37 When I come to resentence, I take account of the fact that the appellant served 24 days of imprisonment between being sentenced by the magistrate and being granted bail. I also take account of the fact that the appellant has been on bail for about five months now and that in itself has provided an environment which is conducive to rehabilitation in the sense that the appellant has been under threat that if there was any recurrence of his offending behaviour, bail would be revoked and he would be returned to prison.

38 It is significant that the appellant has taken the responsibility of embarking upon a programme that deals with family violence and has attended a total of eight sessions in that programme. I am also advised that the appellant's wife has attended a couple of sessions in that programme.

39 I am not so naive as to think that the appellant's conduct in attending that programme is unrelated to the appeal hearing today, but nevertheless I am satisfied that the stimulus which this appeal has provided, the grant of bail and the opportunities that have been provided have produced an environment in which the appellant is taking steps to address the circumstances that have led to his offending behaviour in the past.

40 For the reasons I have given, a term of imprisonment of 8 months is appropriate for the offence committed by the appellant. However, it is appropriate to suspend that term. I do so on the assumption that in the event that the appellant reoffends with the result that the term of imprisonment comes to be served, that the appellant would receive credit for the 24 days he has already served. I sincerely hope this circumstance never arises, but if that does occur and my assumption is not correct, then this would be an appropriate case for the powers to correct a sentence under the Sentencing Act to be invoked and for the matter to be brought back before me to make sure that the appellant gets credit for those 24 days.

41 In terms of the length of the period of suspension, because of my view that the advantage of the period of suspension is to provide a continuing incentive for the appellant to modify his ways, had I been in the position of the magistrate, I might have been minded to suspend the term of imprisonment for a period of 18 months. However, I take account of the fact that the appellant has been on bail and subject to the same sort of constraints as a suspended term of imprisonment for about five months, so it seems to me that the appropriate period of suspension is a period of 12 months commencing today.

42 This court has available to it a sentencing option that was not available to the magistrate; that is the sentencing option of imposing a term of suspended imprisonment subject to a condition. There are a range of conditions that are available under pt 12 of the Sentencing Act. They include a programme requirement (see Sentencing Act, s 84A) and a supervision requirement (see Sentencing Act, s 84B).

43 It seems to me that the most flexible requirement and, therefore, the most suitable for the circumstances of this case is a supervision requirement. I say that for two reasons: firstly, the appellant has shown a capacity to himself embark upon a programme that he has already engaged upon; and secondly, it may be the issues that the appellant needs to address are not limited to family violence but include alcohol. Alcohol seems to have been a feature of the offence that has brought the appellant before this court and of many of the other offences that are reflected in the appellant's record and so it may be that a supervision requirement would enable a community corrections officer to give advice and support to the appellant in relation to the way in which he addresses alcohol. It also seems to me that the flexibility of the supervision requirement is an advantage.

44 The sentence that I impose is a term of 8 months imprisonment suspended for a term of 12 months from today, on condition that the appellant comply with a supervision requirement.