1 MALCOLM CJ : This was an application for leave to appeal against sentence. At the conclusion of the argument on 17 November 2000 the Court was unanimously of the opinion that the application should be refused. It was then indicated that the Court would publish the reasons for reaching that conclusion later. These are my reasons for joining in the making of the order that application for leave should be refused.

2 On 8 August 2000 the applicant was convicted on his plea of guilty to two offences contrary to s 317 of the Criminal Code, namely, that:

(1) on or about 20 September 1999 at Rockingham he assaulted Jaqueline Margaret Hinchliffe and thereby did her bodily harm; and

(2) on 11 November 1999 at Mandurah the applicant assaulted Michael Ian Wright and thereby did him bodily harm.

3 There was a preliminary hearing with respect to count (1) on 12 and 13 June, the transcript of which was tendered in evidence together with a medical report in respect of the complainant the subject of count (1) and the transcript of recordings of intercepted telephone conversations between the offender and the complainant in respect of count (1) and between the offender and a number of other persons.

4 So far as count (2) was concerned, this was treated as a plea of guilty under the fast-track system. The plea of guilty was entered when the Crown substituted a complaint for the offence contained in count (2) on the indictment at the conclusion of the preliminary hearing with respect to count (1) and another offence. There was a videotaped record of interview conducted with the offender, but he declined to answer any questions in respect of either of the two offences.

5 On 14 August 2000 the applicant was sentenced to imprisonment for three and a half years in respect of the offence the subject of count (1) and two and a half years in respect of the offence the subject of count (2). The sentences were directed to be served cumulatively, making a total term of imprisonment for six years. An order was made that the applicant be eligible for parole.

6 By his application for leave to appeal against sentence dated 28 August 2000 the applicant sought leave to appeal in respect of both the sentences imposed. At the hearing of the application on 17 November 2000 the applicant abandoned the application for leave to appeal against sentence in respect of the offence involving his wife, the subject of count (1) on the indictment. So far as the sentence imposed in respect of count (2) on the indictment is concerned, the application for leave was originally made on the grounds that:

"3. The Learned Sentencing Judge erred in law by failing to give any or any sufficient weight to the following:

3.1 The circumstances relating to the assault upon Michael Wright.

PARTICULARS

(a) The fact that the Applicant had only learnt of Michael Wright's affair with his wife on the day of the assault;

(b) That there was no medical evidence with respect to the effect of the assault upon Michael Wright.

3.2 The Applicant's plea of guilty at the very earliest opportunity.

3.3 The report of psychiatrist Dr James Fellows-Smith dated 31 July 2000 and the conclusion that the offence was committed in a state of 'morbid jealousy'.

4. The Learned Sentencing Judge erred in law by giving undue weight to the Applicant's antecedents and criminal history.

5. The Learned Sentencing Judge erred in law by ordering the sentences be served cumulatively and thereby imposed an overall sentence that was manifestly excessive in all the circumstances."

7 Grounds 4 and 5 were abandoned at the hearing and substituted by the following:

"6. The learned sentencing Judge imposed a sentence that was manifestly excessive in all the circumstances of the offence and the offender.

Particulars

(a) The 'fast track' plea of guilty;

(b) The nature of the victims injuries;

(c) The fact that the victim had an affair with the Applicant's wife;

(d) The fact that the Applicant had only learned of the existence of the victim on the day of the offence;

(e) The report of psychiatrist Dr James Fellows-Smith dated 31 July 2000 wherein he concluded that the offence was committed in a state of 'morbid jealousy'.

7. The learned sentencing Judge erred in taking into account as aggravating circumstances the fact that the offence was 'associated with ongoing threats to Wright (the victim)'."

8 The offence of assault occasioning bodily harm the subject of s 317 of the Criminal Code attracts a maximum penalty of imprisonment for five years. It may be accepted that the maximum sentence is available to be imposed for offences falling into the very worst category of the offence of assault occasioning bodily harm: cf Bensegger v The Queen [1979] WAR 65. It was submitted that the sentence imposed was manifestly excessive and that the learned Chief Judge of the District Court took into account an aggravating factor that was not open.

9 In order to understand the context in which the applicant was sentenced in respect of the offence the subject of count (2), it is necessary to recount the circumstances with respect to the offence the subject of count (1) which formed the background to the offence the subject of count (2).

10 The complainant in respect of count (1) was the wife of the applicant. At the time that offence was committed on 20 September 1999 the applicant and the complainant were living separately. The complainant was living in the family home at Rockingham with the three children of the marriage. The applicant was living in Mandurah. Some time prior to 20 September the applicant discovered that his wife had been having a sexual relationship with another man. It was not until 11 November that the applicant learned the identity of the man concerned, namely, Mr Wright, who was the victim of the offence the subject of count (2).

11 During the early hours of Monday 20 September 1999 the applicant went to the family home in Rockingham and assaulted his wife by punching her and kicking her. As a result of the assault the complainant received a ruptured lung, a fractured rib, a fractured nose, a perforated eardrum and soft tissue injuries to the face and neck, including haematoma of both eyes and bruising to both ears. She had bruises and whip-like marks to her upper and lower back. Her serious injuries were detailed in a report of Dr Chee of Rockingham Hospital. That report indicates that the complainant reported that the assault took place about 5.00 am on 20 September 1999 and she was admitted to hospital at about 9.55 am. No complaint was made to police by the complainant in respect of that assault. The medical report indicated that the complainant declined to inform the treating doctor of the name of her assailant. Police subsequently became aware of the assault through telephone conversations between the offender, the complainant and others which were intercepted.

12 As to count (2), between April and early September 1999 the complainant, Mr Wright, had a sexual relationship with the applicant's wife. After he became aware of the relationship, on 11 November 1999, the day on which the assault on Mr Wright occurred, the applicant went to Mr Wright's workplace in Mandurah at about 3.30 pm accompanied by another male. Mr Wright was seated at his workplace having his lunch. The applicant's companion stood by the door and the applicant approached Mr Wright and punched him in the head. Mr Wright remained seated, but covered his head with his hands and the offender began to walk away.

13 Mr Wright then said something to the applicant and the offender walked back to where Mr Wright was seated and began to hit him again. Before the applicant and his companion left, the applicant indicated to Mr Wright that he would be back. Mr Wright ceased work immediately, left Mandurah, returned to Perth and never returned to work in Mandurah.

14 As a result of the assault Mr Wright suffered a blood nose, a blackened right eye and bruising to the ribs on both sides. Mr Wright was subsequently shot dead at his home on 25 February 2000 and Mrs Hinchliffe, the complainant the subject of count (1), was charged with his wilful murder.

15 The applicant had been in custody in respect of count (1) and the predecessor to count (2) since 14 December 1999. On that basis, the Crown conceded that it was appropriate to backdate the term of imprisonment with respect to the two counts to that date.

16 In support of the plea in mitigation, counsel for the applicant tendered to the learned Chief Judge of the District Court a number of references which referred to the applicant's concern for his children, together with a letter from the applicant which dealt with the impact and effect on him of learning of his wife's infidelity. He stated that he regretted the incident involving the assault on his wife, the subject of count (1), saying that he had continuing concern for the children and that he had exploded in anger. In this respect, the learned Chief Judge said:

"... I record, in case it becomes necessary upon review anywhere else, that I have read those documents. They have not altered my sentencing comments which I have prepared and which I will be about to deliver, because the question of whether or not these incidents were the result of an explosion or an impulse is the critical one here and I do cover it in my sentencing remarks."

17 So far as count (2) on the indictment is concerned, the learned Chief Judge said:

"I turn to the second count on the indictment. This beating upon the deceased Wright took place some 7 to 8 weeks after the assault upon the offender's wife. It was a deliberate plan and effected assaults conducted by the offender in the company of another person and associated with ongoing threats to Wright. On the Monday following the assault upon Wright the offender returned to the automotive works in Mandurah looking for the victim. He asked Hollands, 'Where's Mick?' Hollands said, 'He isn't here,' and Hollands didn't know where he was. The offender said, 'Mick needs his job because he has to pay me lots of compensation. It is compensation for Mick screwing my wife.'

The offence against Wright is therefore carried out with brutal deliberation but that offence, count 2, is of a slightly different character to the other one. The offender must obtain the benefit of a plea of guilty on the fast-track system and that has the effect of reducing or fixing the penalty for this second count at 2 and a half years. There is no reason whatever why the two terms of 3 and a half years and 2 and a half years should not be served cumulatively and such is ordered. They will operate from 14 December 99 and on the issue of eligibility for parole I propose to declare eligibility for parole on both counts, simply to ensure that when the offender does leave custody he leaves under supervision and reporting conditions which will no doubt be imposed by the parole board."

18 It was submitted that the sentence imposed for the assault on Mr Wright was manifestly excessive and that the learned Chief Judge took into account an aggravating factor that was not relevant. The argument that the sentence was excessive was based upon the contention that the offence was not one in the worst category of assaults occasioning bodily harm. Given that the discount extended in relation to a plea of guilty on the fast-track system is in a range commonly between 20 to 35 per cent, it was submitted that this indicated that the starting point in the present case was in the vicinity of approximately three years and two months to three years and 10 months. On this basis, it was contended that the sentence imposed was manifestly excessive either because the starting point was too high or, alternatively, the learned Chief Judge did not apply a sufficient discount for the fast-track plea of guilty.

19 The injuries sustained by Mr Wright, namely, a black eye, bruising and a blood nose, were not, so it was submitted, injuries at the higher end of an assault occasioning bodily harm. This was said to be because the assault was of a relatively short duration and it was not subsequently repeated. The fact that the offender had only learned on the day of the offence that Mr Wright had been having a sexual relationship with his wife, although, as counsel conceded, "obviously not a mitigating feature [sic factor]", was pointed to as an explanation for the commission of the offence. It was further submitted that this was not a random attack on an unrelated victim. The applicant was of about the same age and approximately the same build as the complainant. In summary, counsel for the applicant contended that the circumstances were not such that warranted, absent the fast-track plea of guilty, a starting point in the vicinity of between three years two months and three years 10 months.

20 In my opinion, the sentence imposed was well within the appropriate range. Assuming that the learned Chief Judge had allowed a discount of the order of 25 per cent, the sentence imposed indicates a starting point of three years and four months. In my view, such a discount would have been at the upper level of what would have been appropriate in the present case.

21 It is conceivable that a lesser discount could have been imposed and, although it is a matter of speculation, it is also conceivable that there could have been a starting point of about three and a half years with a discount of 30 per cent to yield the sentence which was in fact imposed. This must be contrasted with the characterisation of the offence committed on the applicant's wife, the subject of count (1), which was characterised as "a crime of the utmost premeditated and planned brutality" compounded by:

"... the actions of the [applicant] in boasting to his friends of what he has done, the further actions of getting through on the telephone to the complainant when she was in hospital on subsequent days, abusing her, demanding that her hair be shaven and demanding gynaecological assistance to correct what the offender saw as the results of her infidelity.

There is, in my view, absolutely no way that this particular assault can be regarded as anything other than at the top of the range when it is viewed in the light of the offender's comments and actions both before and after the assault."

22 Another matter which should be taken into account is the incident on the Monday following the assault upon Mr Wright, when the applicant returned to the automotive works in Mandurah looking for Mr Wright. This led his Honour to infer that the offence against Mr Wright was carried out with "brutal deliberation". In other words, the Chief Judge was explaining why he had come to find that the offence was premeditated.

23 It was contended, in support of ground 6, that insufficient account was taken of the mitigating factor evidenced by the report of a psychiatrist dated 31 July 2000 that the offence was committed by the applicant in a state of "morbid jealousy". In this respect, the learned Judge said:

"There is a psychological report with the opinion that the assault occurred due to the offender's morbid jealousy in a dependant and suspicious husband who displayed the psychotic features and morbid jealousy whilst withdrawing from dependant use of stimulants drugs including cocaine, ecstasy and LSD. It is said that the complainant Mrs Hinchliffe has forgiven her husband and is writing to him from prison professing her love. With respect to the assault upon Wright, which of course occurred several weeks after the assault on Mrs Hinchliffe, it is submitted that again it was the effect of being shocked and affected by further details of his wife's infidelity and, again, it was a question of loss of control due to circumstances not of his own making.

It is said that this is a manifestation of people in crisis, that this emotional crisis was fuelled by illicit substances, that the offender is remorsement [sic remorseful], the offence is out of character, that he had a difficult and disturbed upbringing and that he has suffered greatly by losing his business as a result of his incarceration and that these offences are far from being the most serious of their kind and they are, to an extent, understandable.

It is impossible, in my finding, to accept any submission regarding any suggestion of impulsive behaviour. The papers include a number of transcribed telephone conversations between the offender and his wife, the complainant, commencing with a conversation on 18 September at 8.40 am whereby the complainant Mrs Hinchliffe was upbraided and abused by the accused for her infidelity in vile terms."

24 It may be accepted that emotional stress which leads to criminal conduct is material to the consideration of an appropriate sentence, although its mitigatory effect can be outweighed by countervailing factors: Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at 324 per Brennan J. As counsel for the Crown submitted, the mere existence of a psychiatric condition is not itself mitigatory, unless it is shown that there is a connection between the condition and the commission of the offence: Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998. It was not submitted on behalf of the Crown that the state of morbid jealousy was unconnected with the commission of the offence. The report stated, however, that the applicant was aware of a pattern of paranoia and querulousness when coming down from binges of drug abuse. About the time leading to the relevant assault the applicant was said to have increased his drug abuse which destabilised him. Where a condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence: cf Redenbach (1991) 52 A Crim R 95 at 99 per Young CJ, Brooking and Marks JJ. In my opinion, such mitigatory effect that the state of morbid jealousy may have had was substantially reduced by the fact that it was at least partially self-induced, and had to be weighed in the balance against the substantial aggravating factors to which I have referred. As the learned Chief Judge pointed out, the assault on Mr Wright was some 7or 8 weeks after the applicant found out that his wife had been unfaithful, although it was on the day on which his identity had been discovered.

25 It was submitted in relation to ground 7 that the learned Chief Judge erred by taking into account as an aggravating circumstance the fact that the offence was "associated with ongoing threats to Wright". Reference was also made by the learned sentencing Judge to a telephone call made by the applicant to Mr Wright's employer, Mr Hollands, some days later. It was said that these allegations were originally part of the evidence against the applicant with respect to a complaint of an offence under s 397(2) of the Criminal Code alleging that the applicant had demanded $50,000 by threats from Mr Wright on 14 November 2000, being two days after the assault. The applicant pleaded not guilty to that complaint and had elected a preliminary hearing. On the second day of the preliminary hearing, the Crown agreed to lead no further evidence against him with respect to that complaint and he was discharged.

26 It was submitted that the learned Judge wrongly took into account the ongoing threats to the complainant as aggravating circumstances. It was further submitted that, in the context of this case, this had the result that the applicant was being punished for an offence of which he had not been convicted which was wrong in principle: The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 per Gibbs CJ; and Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1 at 5 per Deane, Dawson, Toohey, Gaudron and McHugh JJ.

27 It may be accepted that caution is necessary where circumstances of aggravation relied upon themselves may constitute a separate offence or separate offences: cf The Queen v Teremoana (1990) 54 SASR 30 at 36 - 37 per Cox J; and Medcraft (1992) 60 A Crim R 181 at 186 per Phillips CJ, Crockett and Southwell JJ. As is apparent from the sentencing remarks of the learned Chief Judge, the reference to "ongoing threats" was based upon the facts that, on the day of the offence, the applicant told Mr Wright that he would be back and that, on the Monday following the assault, the applicant returned to the automotive works in Mandurah looking for Mr Wright. When told by Mr Hollands, who was Mr Wright's employer, that he did not know where Mr Wright was, the applicant said:

"Mick needs his job because he has to pay me lots of compensation. It is compensation for Mick screwing my wife."

In my view there is nothing in these remarks to suggest that the learned Chief Judge took into account the alleged offences which were not proceeded with.

28 In my opinion, this was a very serious assault by the applicant and, although the person who accompanied him did not participate in the assault, it was compounded by the fact that the applicant was in company and threatened to return and repeat the assault. Mr Wright took the threat seriously with the result that he left his employment and moved to Perth. In my view, the sentence imposed was fully justified and no error in the sentencing process has been shown.

29 IPP J : I have read the reasons of his Honour the Chief Justice. I am in agreement with those reasons and have nothing further to add.

30 WALLWORK J : I agree with the reasons for judgment of Malcolm CJ. There is nothing I wish to add.