Criminal law - Sentence - Assault occasioning bodily harm - Failure to specify the bodily harm - Victim impact statements - Relatives of deceased - Distress and other effects of death on them - Whether admissible

Sentencing Act 1995 (WA), s 7(2)(a), s 8(2), s 13, s 24, s 25, s 26

R v Hodges [1999] WASCA 278

R v Osip [2000] VSCA 237; (2000) 116 A Crim R 578

Williams v The Queen, unreported; CCA SCt of WA; Library No 930255; 5 May 1993

1 MURRAY J: I am most grateful to have had access to the reasons in draft now published by Roberts-Smith J. They are comprehensive and relieve me of the need to do more than explain briefly why I joined in the orders made by the Court upon the hearing of the appeal. There are one or two aspects of the case upon which I would take a different view from that expressed by Roberts-Smith J.

2 The history of this prosecution shows that when finally the Court came to pass sentence upon the applicant's conviction for assault occasioning bodily harm, on the evidence before the Court the sentencing Judge was bound to act upon the basis that although the applicant had indirectly caused the deceased to suffer grievous bodily harm in the form of the brain injuries described by Roberts-Smith J, and although the applicant had indirectly caused the death of the deceased, again in the manner described by Roberts-Smith J, that grievous bodily harm and the death were not unlawful events for which, having regard to the terms of s 23 of the Criminal Code, the applicant was criminally responsible.

3 It necessarily followed from the verdicts of the two juries who dealt with those issues that they were not satisfied beyond reasonable doubt that those were not accidental events in the sense that they were not intended or foreseen by the applicant and were not, in all the circumstances of the case, to be held to be reasonably foreseeable by a person in his position doing what he did by the blow which set the chain of causation in motion.

4 Great care had to be taken, therefore, by the sentencing Judge to ensure that his Honour did not, by his sentence, punish the applicant for those events, but only for the offence of which he was convicted, the act of assault by a single blow causing bodily harm in the form of a minor facial injury and bruising. In my opinion, it is evident from his Honour's sentencing remarks that he understood that limitation and that the nature of the bodily harm which had been inflicted was as I have described it.

5 However, to so hold is not to suggest that the fact that the blow indirectly caused grievous bodily harm to, and the death of, the deceased was irrelevant for sentencing purposes. In my opinion, the fact that the blow had those consequences was a matter relevant to a proper understanding of the nature of the blow which the sentencing Judge, rightly on the evidence, accepted to be one delivered with considerable force to the face of a victim who had given no provocation for the assault and who was evidently entirely unprepared to defend himself in any way or to lessen the impact of the blow he received.

6 That leads me to refer briefly to the question of the victim impact statements. In my opinion, each of the persons who made such a statement was a victim as defined by the Sentencing Act 1995 (WA), s 13. I think each person was relevantly a member of the immediate family of the deceased and, as I have noted, it was undoubtedly the case on the evidence that the commission of the offence of assault occasioning bodily harm did result in death. It was therefore open, in my opinion, by ss 24 and 25(1) of the Act, for each of those persons to provide to the Court a victim impact statement giving particulars of the injury, loss and damage suffered by that person and describing the effects on that person of the commission of the offence of assault occasioning bodily harm which led to the untimely death of a loved one.

7 It remained the case, however, that the sentencing Judge had to keep within the strict bounds of relevance to which I have referred, the matters described in the victim impact statements, so that his Honour did not transgress what was permissible and effectively punish the applicant for the grievous bodily harm or the death for which he was not criminally responsible.

8 I wish to say something about the relevance of the earlier indication on behalf of the applicant that he was prepared to plead guilty to this offence at a much earlier stage in the proceedings although, as Roberts-Smith J has noted, the applicant never did enter that plea, whether or not it was to be accepted by the Crown, when the indictment was in a form which contained this alternative offence. I respectfully agree with Roberts-Smith J that his Honour's acceptance that this failure may have been for tactical reasons is charitable to the applicant and difficult to understand.

9 It smacks of the implication that, when it was clear that the Crown wished to put the applicant to his trial for the offence of grievous bodily harm, the applicant thought he ought to enter a plea of not guilty to the charge of assault occasioning bodily harm in case the jury might acquit him entirely, although it seems to be clear that his defence at trial involved no realistic chance that the jury might accept that he struck Mr Williams in self-defence or, more strictly, that he honestly and reasonably, although perhaps mistakenly, believed that it was necessary to strike the blow by way of defensive force.

10 However that may be, to my mind it is clear that s 8(2) of the Sentencing Act only has application when a plea of guilty is made. It provides:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."

11 The subsection had no application to this case because although an indication had been given that a plea of guilty would be made, no such plea ever was made.

12 However, I would not deny that there remained mitigation available to the applicant in the circumstances of this case because the applicant was, in effect, saying to the Crown that he would not insist on maintaining the proposed defence of self-defence if the Crown accepted a plea to assault occasioning bodily harm in full satisfaction of the indictment. As Roberts-Smith J has noted, on the proper interpretation of the provisions of the Code, the Crown had the power to refuse its consent to such a plea even in the circumstances of this case where the plea was offered to a count pleaded in the alternative in the indictment: Attorney-General's reference under s 693A of the Criminal Code [2002] WASCA 242; (2002) 26 WAR 197.

13 The question, however, was the mitigatory force of an indication that a plea of guilty would be made, which was never carried into effect. By analogy, it seems to me, it would be open in a case such as this to apply the principles enunciated by the High Court in Cameron v The Queen (2002) 209 CLR 339. In the circumstances of this case it would seem to me that it would be proper to accept that the indication of the plea was an expression of remorse and an acceptance of responsibility for the blow struck and its consequences within the framework of the law and the excuses available to negate the applicant's criminal responsibility.

14 I do not, however, see that his Honour was obliged to have regard to any willingness to facilitate the course of justice in this case, having regard to the way in which matters developed, and it seems to me that the sentencing Judge was right to consider that the mitigatory force of the indication of a plea of guilty was devalued substantially by the failure to carry the indication through to the actual making of a plea.

15 In the end then what moved me to join in the orders made by the Court on the hearing of this application was not the view that the sentencing Judge had committed any particular error of principle, but that the exercise of discretion had miscarried by the imposition of a sentence which was manifestly excessive.

16 The matter had to be viewed, as his Honour the sentencing Judge reminded himself, in the context of a maximum penalty of imprisonment

for 5 years, having regard to the terms of s 317 of the Code as they applied to this case. The applicant was effectively a first offender, well thought of and a good contributor to the community, and yet he was a mature man who ought to have been able to set a good example for his teenage son. His son had been injured in a minor way in a previous incident, but it does not seem to be abundantly clear that the circumstances involved the commission of any offence against his son. Yet, as the sentencing Judge noted, the applicant was prepared, without mature inquiry, to take the law into his own hands and he obviously went to the place where the offence was committed for the purpose of seeking revenge for the wrong which he perceived had been done to the boy.

17 He trespassed upon Mr Williams' property and he struck a blow, a forceful blow, having a profound and tragic effect on the victim, quite apart from the relatively minor bodily harm it directly caused, without any indication that Mr Williams had given, or was in the process of giving, any provocation or cause for the blow. There was no need for more than one blow, having regard to the effect it had. The applicant did not pause to see if he had done any real harm to his victim, but he commenced to pursue others, evidently with the same object in mind. On the other hand, he carried and used no weapon and it is clear that when, belatedly, he discovered that Mr Williams was seriously hurt he was gravely concerned at what he had done.

18 The relevant circumstances have been reviewed by Roberts-Smith J. I respectfully agree with his Honour. The offence was of a character which required substantial punishment and considerations of general deterrence as well as deterrence of the applicant were important. However, the matters which marked the seriousness of the offence had to be kept in perspective and the matters of mitigation personal to the applicant were not to be overlooked. In all the circumstances, I was of the view that the case required punishment of the most severe kind known to the law and it would have been an inadequate response to sentence to imprisonment and then to suspend the sentence. However, in all the circumstances I thought the sentence of 3 years imprisonment was too severe and required the intervention of this Court. It was for that reason that I joined in the orders made by the Court to grant leave to appeal, allow the appeal, quash the sentence imposed and substitute a term of 2 years imprisonment.

19 STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision of each of Murray J and Roberts-Smith J. The facts and

circumstances giving rise to this appeal are fully recited in the judgment of Roberts-Smith J and it is unnecessary to repeat them.

20 The important fact, so far as this appeal is concerned, is that, notwithstanding that Mr Gavin Williams died after having been punched in the face by the appellant, having fallen over and having hit his head on a brick driveway, the jury found that the appellant was not criminally responsible for Mr Williams' death or even for any grievous bodily harm caused to him. The only offence of which the appellant was convicted was one of assault occasioning bodily harm. As is apparent from the judgment of Roberts-Smith J, the assault comprised a single punch to Mr Williams' face and, as was agreed by counsel on both sides, the bodily harm caused by that single punch, for which the appellant was criminally responsible, was no more than bruising or a split lip which might ordinarily be expected to be caused by a punch of that kind.

21 The sentencing Judge, when he came to sentence the appellant, accepted that the appellant could only be sentenced in respect of the limited offence of which he had been found to be guilty. His Honour said, in that respect, the following:

"It is the submission of your counsel that you are not responsible for Mr Williams' demise and that you are not responsible for the two brain injuries that he suffered, being the grievous bodily harm because you had been acquitted of those after trial by jury. I accept that proposition totally. It is the case that I am not in a position to sentence you or to take into account the fact that Mr Williams died or the fact that he suffered grievous bodily harm."

22 However, his Honour went on to say that he proposed "to take into account in the sentencing process that a consequence of the attack on Mr Williams has been the shock, the grief, the tragedy which has had to be endured by all who knew and loved him." That shock, grief, and tragedy, he said, was quite apparent from a reading of the victim impact statements which had been placed before him. His Honour then considered the appellant's antecedents, the circumstances surrounding the offence, the need for deterrence and the maximum penalty for the offence of assault occasioning bodily harm before imposing a sentence of 3 years' imprisonment with eligibility for parole.

23 In my opinion there are only three grounds of appeal which need be considered. They are ground 1, which contends that the sentence imposed was manifestly excessive given the limited nature of the offence of which the appellant was convicted and given also the appellant's favourable antecedents, remorse and early indication of willingness to plead guilty to the offence of which he was ultimately convicted, and grounds 6 and 7, which take issue with the admission of the victim impact statements and the use to which they were put.

25 Under s 24(1) of the Sentencing Act 1995 a "victim" may give a victim impact statement to a court to assist it in determining the proper sentence for the offender. By virtue of s13 of the Act a "victim" is defined "in relation to an offence" to mean not only a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, but also, in a case where the offence results in a death, any member of the immediate family of the deceased. Under s 24(2) if, because of age, disability or "any other reason" a victim is personally incapable of giving a victim impact statement, another person may give it on the victim's behalf if the court is satisfied that it is appropriate for that other person to do so.

26 A victim impact statement is defined by s 25(1) of the Act to mean a statement that gives particulars of any injury, loss or damage suffered by the victim as a direct result of the offence and that describes the effects on the victim of the commission of the offence. It may be accompanied by a report by any person who has treated the victim in connection with the effects on the victim of the commission of the offence: s 25(3). It must not address the way in which or the extent to which the offender ought to be sentenced: s 25(2). The court may make it available to the prosecutor and to the offender on such conditions as it thinks fit (s 26(1)) and the court may rule as inadmissible the whole or any part of it (s 26(2)).

27 These provisions were designed to involve victims in the sentencing process and to ensure that judges know of the actual, rather than the assumed, consequences of the crimes which come before them: cf Mitchell v The Queen (1998) 20 WAR 257 at 260, per Kennedy J, and R v Dowlan [1998] 1 VR 123 at 140, per Charles JA. Because of the nature of statements of that kind it would, as Charles JA pointed out in Dowlan at 140, be quite destructive of the purpose of these statements if there was not to be some degree of flexibility as regards their reception, in the sense that it should not require scrupulous application of the rules which are applicable to the use of witness statements in civil cases. However, the requirements of the Act must be observed in considering admissibility and reliance must not be placed on inadmissible matters to the prejudice of the offender.

28 In this case, six victim impact statements were admitted into evidence. They were prepared by Mr Williams' fiancée, by the mother of his 5-year-old daughter (this statement was expressed to have been prepared on behalf of Mr Williams' daughter), by his sister, by his mother, by his father and by his stepmother. In each case the statement spoke eloquently of the shock, grief and sense of loss which had been suffered as a result of Mr Williams' death.

29 There is no doubt that, in a case in which an offender is to be sentenced upon a conviction of manslaughter or murder, any member of the immediate family of the deceased would be a "victim", in relation to that offence, within the definition of s 13 of the Act and consequently able to give a victim impact statement under s 24(1). In such a case the shock, grief and sense of loss suffered by each such victim would amount to "effects on .. [that] victim of the commission of the offence": s 25(1)(b). However, in a case such as this, where the victim died in the circumstances which I have described, but the offender was not found by the jury to have been criminally responsible for his death and consequently falls to be sentenced only for the offence of assault occasioning bodily harm, no member of the immediate family of the deceased could, in my opinion, be said to be a victim, "in relation to .. [that] offence", within the meaning of the definition in s 13, read with s25(1) of the Act. Such a person would not have suffered any "injury, loss or damage as a direct result of the offence" within the meaning of s 13(a) of the Act or, for that matter, s 25(1)(a) thereof and, while the death of the deceased would undoubtedly have had tragic effects on each such person, those effects would not have been effects "of the commission of the offence" within the meaning of s 25(1)(b) of the Act.

30 In a case in which the victim of an assault has since died in circumstances in which the offender has not been found to have been criminally responsible for that death, it may be open to a family member to give a victim impact statement on the victim's behalf under s 24(2), if the court is satisfied that it is appropriate for that person to do so, the victim of the assault obviously being "personally incapable" of doing so. However, by virtue of s 25(1), any such victim impact statement would have to be one which gave particulars of any injury, loss or damage suffered by the victim himself as a direct result of the offence or which described the effects on the victim himself of the commission of the offence for which the offender was to be sentenced. The victim impact statements which were admitted in this case dealt, as I have said, only with the shock and grief suffered by those who gave them as a result of the death of the victim. Given the somewhat unusual circumstances of this case, in which the appellant had not been found to be criminally responsible for the death and was to be sentenced only for an assault occasioning bodily harm, they were not, in my opinion, admissible under s 24(2) of the Act.

31 It must, in any event, be the case that victim impact statements cannot be admitted for the purpose of punishing an offender for an offence of which he has not been convicted (cf R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1 at 5). It seems to me necessarily to follow from this that the fact that the "attack" had had the consequence of causing the shock, grief and tragedy endured by those who had known and loved Mr Williams could not be taken into account so as to increase the punishment imposed upon the appellant when the shock, grief and tragedy spoken of in the victim impact statements were quite plainly consequences of the death of Mr Williams rather than of the fact of the assault occasioning bodily harm, being the only offence of which the appellant had been convicted.

32 Whether the victim impact statements were used for that impermissible purpose in this case seems to me to be unclear. The first quoted passage from the sentencing Judge's remarks suggest, quite plainly, that they were not. However, the second quoted passage appears to suggest that they were. It is difficult to see how, otherwise, the shock, grief and tragedy to which his Honour referred could be taken into account "in the sentencing process".

33 Whatever may have been the consequences of the wrongful admission of the victim impact statements, it seems to me that, in the end, the sentencing Judge did impose a sentence that was too severe when regard is had to the comparatively limited nature of the offence of which the appellant was convicted by the jury, to the appellant's antecedents, to his genuine remorse and to his early indication of a willingness to plead guilty to the offence of which he was convicted. The 40-year-old appellant was a first offender with very favourable antecedents. He was found by the sentencing Judge to have been genuinely remorseful for what he had done and, while he did not plead guilty to the offence of which he was convicted, he did offer, prior to 23 August 2000 and again in December 2000, to plead guilty to that offence.

34 In this last respect it is true, as Murray J has pointed out, that, under s8(2) of the Sentencing Act, it is the plea of guilty itself which is said to be a mitigating factor, and the earlier it is made or indicated that it will be made, the greater the mitigation. I have said that in this case the early indication of a willingness to plead guilty to the offence of which the appellant was convicted was never translated into action. However, the reason why it was never translated into action was because the Crown was not prepared to accept the plea in full satisfaction of the indictment. In those circumstances the indication, which was never withdrawn, was, in my opinion, nonetheless a significant mitigatory factor because it demonstrated an acceptance of responsibility for the only offence of which the appellant was subsequently convicted and a willingness to facilitate the course of justice in that regard. (See Cameron v The Queen (2002) 209 CLR 339). It also reinforced the sentencing judge's finding that the appellant showed genuine remorse.

35 In all of the circumstances, even given that the single punch was, as the sentencing Judge said, a "forceful" blow, indiscriminately struck in the manner described by him, a period of 3 years' imprisonment was, in my respectful opinion, manifestly excessive. Of course, had the appellant been convicted of manslaughter or of assault with intent to do grievous bodily harm, he could have expected a sentence significantly greater than one of 3 years' imprisonment but that, as I have stressed, was not what happened.

36 It consequently seems to me that grounds 1, 6 and 7 of the grounds of appeal have been made good and that a sentence of 2 years' imprisonment, with eligibility for parole, should be imposed in lieu of the sentence imposed by the sentencing Judge. It was for these reasons that I joined in the decision of the Court to grant leave to appeal, allow the appeal and impose, in lieu of the sentence imposed by the sentencing Judge, the sentence to which I have referred, backdated to commence on 14 October 2002, the date upon which the appellant was taken into custody. It is unnecessary for me to consider the remaining grounds of appeal.

37 ROBERTS-SMITH J: This is an application for leave to appeal against a sentence of 3 years immediate imprisonment imposed upon the applicant for an offence of assault occasioning bodily harm, contrary to s 317 of the Criminal Code WA.

38 When the application for leave came on for hearing on 15 July 2003 we granted leave, allowed the appeal, set aside the sentence, substituted

instead a sentence of 2 years imprisonment backdated to commence on 14 October 2002 and ordered that the applicant be eligible for parole. We indicated that we would give our reasons later. These are my reasons for joining in those orders.

39 It must be said at the outset that not only is this a tragic case, involving as it does the death of a young man at a "bachelor" party at his own house, but it is one in which the proceedings have been unhappily convoluted and protracted.

40 Gavin Williams was only 24 years old when he died in September 1999. At that time he had a 5 year old daughter from a previous relationship. They were close and spent every second weekend together. He met and fell in love with Ms Belinda Lowe in 1996. They lived in a de facto relationship for 3-1/2 years and were due to be married in October 1999. Ten weeks before his death they bought a house at Quinns Rocks, north of Perth ("the Williams' house"). They arranged a "bachelor" party for Mr Williams at their home on Saturday 25 September 1992, two weeks before their planned wedding.

41 Ms Lowe, her mother and sister (who had flown in from New South Wales for the wedding) went to a friend's house for the night.

42 Some 20 to 25 people attended the party from lunchtime throughout the day. They watched the AFL grand final on television and had a barbecue during the day and into the early evening.

43 The applicant and his family lived some 50 metres away and across the road from the Williams' house. The applicant was 40 years old. He and his wife, to whom he had been married for more than 20 years, had two teenaged sons, then aged 17 and 14.

44 At 7.30 pm there was an incident in the street and on vacant land outside the party. The applicant's eldest son was one of a group who got into an altercation with some of the males from the party. There was some physical conflict. The applicant's son was struck to the face and suffered a blood nose and fractured jaw. Mr Williams was seen at one stage to have suffered a split lip. He also had grazes to his knees and cuts to his feet (he was not wearing shoes) from rocks in the vacant lot. There was no evidence and no suggestion that it was he who inflicted the injuries to the applicant's son.

45 The applicant's son made his way to the hotel at Mindarie Keys Marina where the applicant was drinking. Two police officers came onto the scene. They saw the applicant's son moving from the hotel and spoke to him. He made no response to them. There was a confrontation between the applicant and one of the police officers. The applicant pushed the police officer, who attempted unsuccessfully to arrest him. The applicant left the scene in a vehicle with his son and another male adult.

46 They drove to the applicant's home. From there, the applicant walked across to the Williams' house. At that stage Gavin Williams was standing on his front driveway talking to a friend who was at the party. Mr Williams had been drinking over the day and the medical evidence later showed he had a blood alcohol concentration of 0.203 per cent, which Dr Cadden said was a high level.

47 The applicant ran up towards Mr Williams, calling out "Who's hit my son?" When he was a metre or so from Mr Williams he slowed, and then suddenly punched Mr Williams to the face with his fist.

48 As one witness, Terry Waldron, described it, Mr Williams was at that point moving backwards, maybe about half a step as though he was shying away from the punch. When he was hit, Gavin Williams fell backwards. The witness likened the effect to a rugby tackle at shoulder height; it was if the top half of Mr Williams' body was taken and his legs came straight out from under him. He fell backwards, hitting his head on the brick driveway.

49 The applicant then swung at another young man, Mark Counsel, but just missed. Counsel turned and ran up the driveway towards the gate by the house. The applicant ran after him, calling out "Come back here you chicken shit". Counsel ran into a shed and rang police on his mobile phone.

50 In the meantime Mr Waldron saw other people approaching from the direction in which the applicant had come. There were two of them; one had what seemed like a pole in his hand and the other one also was carrying some kind of object. It appears one of them was the applicant's son. Mr Waldron recognised him as one of those who had been involved in the earlier incident. It was the applicant's son who had the pole. He was trying to hit Mr Waldron with that, causing him to turn and run up towards the gate. Mr Waldron jumped over the fence and ran into the backyard.

51 The applicant had continued into the yard at the rear of the Williams' house, running around vehicles and chasing other people at the party. A short while later he came back down the driveway.

52 By then, others at the party had realised Gavin Williams was seriously injured. In fact, unbeknown to them, he was dying.

53 Gavin Williams had suffered two major injuries to the brain from either of which alone he would have died. They were a severe diffuse axonal injury and a severe contracoup injury. The diffuse axonal injury meant that there were injured nerve fibres and bleeding throughout the brain. That injury would have rendered him immediately unconscious. A contracoup injury is one in which there is an impact to the outside of the skull causing the brain to rebound inside the skull, resulting in injury of the brain at a point opposite to the external impact on the skull itself.

54 The mechanism of death is the same following upon either of these injuries. When the brain is injured it begins to swell from the bleeding. Because it is encased in thick skull, it has nowhere into which to expand, that is, except for a small opening at the back base of the skull through which the spinal cord passes. When the brain has reached its maximum swelling point in the skull it expands into the small hole, compressing the breathing centre and causing cessation of circulation. Brain death occurs at that point.

55 According to Dr Fabian, Gavin Williams would have been rendered immediately unconscious from the diffuse axonal injury and remained so until death.

56 The process would have taken some time, but death was inevitable from either of those injuries, regardless of medical treatment.

57 Of course, none of this was realised by those tending to Mr Williams as he lay unconscious on the driveway after the assault. They did what they could before the ambulance arrived, placing him in the coma position and at one point having to resuscitate him when he stopped breathing.

58 When the applicant came back down the driveway and saw Gavin Williams lying there with people around him, he approached them asking them whether the boy was alright. Mr Waldron thought the applicant was concerned for Gavin Williams.

59 Police and ambulance officers arrived shortly afterwards.

60 Gavin Williams never regained consciousness and died in hospital at noon the following day.

61 On the date fixed for her wedding, Ms Lowe had a ceremony in which she formally changed her surname to Williams by deed poll in remembrance of her fiancé.

62 At 9.30 am on 26 September 1999 the applicant was taken into police custody. He took part in a police video record of interview, following which he was charged with assault occasioning bodily harm.

63 On 1 October 1999 that charge was withdrawn and a charge of murder was substituted for it.

64 On 1 November 1999 the Director of Public Prosecutions withdrew the murder charge and substituted a charge of manslaughter. The applicant was granted bail on that date, having been in custody from the date of his arrest.

65 An indictment dated 3 February 2000 was presented, containing one count of manslaughter. That was listed for hearing at a three day trial in the District Court at Perth, commencing on 21 August 2000. However, on 23 June that year the DPP filed a new indictment charging manslaughter and two specific alternatives, namely unlawfully doing grievous bodily harm contrary to s 297 of the Criminal Code and assault occasioning bodily harm contrary to s 317 of the Code.

66 It appears that prior to the trial commencing on 23 August 2000, counsel for the applicant, Mr Cannon, orally offered a plea of guilty to assault occasioning bodily harm in satisfaction of the indictment. That offer was not accepted by the Crown.

67 On 23 August 2000, the jury returned a verdict of not guilty of manslaughter but guilty of causing grievous bodily harm. The trial Judge, Healy DCJ, sentenced the applicant to 6 years imprisonment backdated to commence on 18 July 2000 to take into account the time the applicant had spent in custody. There was an order that he be eligible for parole.

68 The applicant appealed against both conviction and sentence. That appeal was heard on 17 November 2000.

69 On 15 December 2000 this Court allowed the applicant's appeal against conviction (Hooper [2000] WASCA 394; (2000) 116 A Crim R 510). The appeal was allowed because in directing the jury on accident (s 23 of the Criminal Code) the trial Judge had taken the "event which occurs by accident" to have been the falling of Mr Williams to the ground and the fracturing of his skull. That was incorrect, because in relation to the charge of manslaughter the relevant "event" was the death and in relation to the charge of causing grievous bodily harm it was the damage to the brain. There was also necessarily an inconsistency between the verdicts. The conviction was quashed and a retrial ordered on the charge of causing grievous bodily harm.

71 On 22 January 2001 the Crown applied for special leave to appeal to the High Court against the judgment of this Court given on 15 December. Special leave was refused on 24 October 2001.

72 The Crown filed a further indictment dated 10 December 2001 charging one offence of causing grievous bodily harm and an alternative of assault occasioning bodily harm.

73 On 12 February 2002 the applicant's then solicitor wrote to the Crown advising that the applicant intended to appear in the District Court on 13 February and plead guilty to the count of assault occasioning bodily harm. He advised that the defence would submit the court must accept a plea to the alternative count in full discharge of the indictment of 10 December 2001 and that the agreement of the Crown was unnecessary. This submission was advanced on the basis of a ruling by Murray J in R v Canh Dai Nguyen on 5 February 2002 (unreported). I note that decision was subsequently overturned on reference to this Court (Attorney-General's reference under s 693A of the Criminal Code [2002] WASCA 242; (2002) 26 WAR 197).

74 On 13 February 2002 the Crown sought to file a nolle prosequi in respect of the indictment dated 10 December 2001 and present a fresh indictment dated that day charging one count of causing grievous bodily harm, the intent being apparently to thereby prevent the applicant from pleading guilty to the alternative of assault occasioning bodily harm in full satisfaction of the indictment.

75 His Honour the Chief Judge of the District Court declined to accept the nolle prosequi and adjourned the proceedings pending the decision of this Court on the reference from the judgment of Murray J.

76 The applicant's retrial on the indictment dated 10 December 2001 took place in the District Court at Perth before Williams DCJ and a jury from 12 to 14 March 2003. The applicant was found not guilty of causing grievous bodily harm but guilty on the alternative count of occasioning bodily harm. He was remanded in custody for sentence. On 21 March 2003 Williams DCJ imposed a sentence of 3 years imprisonment backdated to 14 October 2002. He ordered the applicant be eligible for parole.

77 The application for leave to appeal was made by notice dated 26 March 2003. The proposed grounds of appeal were there set out as follows:

"1. The sentence imposed following conviction for the offence of Assault (sic: occasioning) Bodily Harm was manifestly excessive in all the circumstances.

(a) It was a single punch

(b) For sentencing purposes The Applicant (sic: was) a first offender.

(c) The Applicant's concern for the Complainant following the incident.

(d) The Applicant's good character and lack of propensity to violence.

(e) The Applicant should have been treated as having pleaded guilty at the earliest opportunity.

(f) The Bodily Harm was at the lower end of the scale, being minor injuries to the face.

2. The learned sentencing judge erred in law in taking into account that the Applicant did not in fact enter a plea of not guilty (sic: guilty) and only indicated that (sic) an intention to plea (sic) guilty to assault occasion (sic) bodily harm. The court should have sentenced on the basis the plea of guilty was entered as (sic) the earliest opportunity.

3. The learned sentencing judge erred in fact in finding that the Applicant first indicated a willingness to plead guilty in 17 December 2000, when there was evidence before the sentencing judge, that the Original trial judge accepted at the first trial held in August 2000 that Hooper was prepared to plead guilty to Assault Occasioning Bodily Harm.

4. The learned sentencing judge erred in fact, by taking into account factors, which were not supported by the evidence.

5. The learned sentencing judge erred in law in failing to identify the bodily harm, which was the basis of the sentence.

6. The learned sentencing judge erred in law in ruling the victim impact statements admissible.

7. The learned sentencing judge erred in law in taking into account the victims' shock, grief, and the tragedy of (sic) suffered by those victims who loved the complainant, when the prisoner was found not guilty at a previous trial of causing the death, and not guilty at trial of causing Grievous Bodily Harm.

8. The learned sentencing judge failed to take into account the fact I (sic) had been previously imprisoned and released to bail; the disruption this has had (sic) the Applicant's employment and family life."

78 Having briefly outlined the facts, the learned sentencing Judge noted that the applicant had been acquitted of the offences of both manslaughter and causing grievous bodily harm. He accepted the proposition urged upon him by counsel for the applicant that those verdicts necessarily meant the applicant was not criminally responsible for Mr Williams' death nor for the two brain injuries suffered by him (they being the grievous bodily harm alleged) and said he accepted that proposition "totally".

79 His Honour accepted the assault was by a single punch but that it was a forceful blow, no doubt having regard to the evidence as to its effect on Mr Williams. There was not a frenzied attack and this was not a case of multiple hits.

80 The learned sentencing Judge referred to the victim impact statements from which he said, it was obvious that this was an extremely tragic situation. He said he proposed to make use of the victim impact statements on the basis of a comment made by Malcolm CJ in the Court of Criminal Appeal in the course of hearing the appeal in respect of the first trial. He explained that by that he meant he proposed to take into account in the sentencing process that a consequence of the attack on Mr Williams has been the shock, the grief and the tragedy which has had to be endured by all who knew and loved him.

81 His Honour accepted that when the applicant returned to the front of the house, he was clearly concerned about Mr Williams but was also of the view that part of that concern was the fact that he was responsible for Mr Williams' condition and what might happen to the applicant himself as a consequence.

82 Referring to the submission that the applicant had always indicated a willingness to plead guilty to the assault of which he was ultimately convicted, he said he proposed to sentence the applicant on the basis that a letter written by his then solicitor and counsel in December 2000 offered to plead guilty to assault occasioning bodily harm, but also on the basis that no plea was ever entered in respect of that count although, his Honour said, he also took into account that might well have been for tactical reasons.

83 His Honour then referred to the applicant's antecedents, which he briefly recited. He mentioned the references tendered on the applicant's behalf which indicated that he was highly regarded as a productive member of the community.

84 He accepted the submission that the applicant was generally remorseful and concerned and that he was effectively a first offender.

85 His Honour reiterated that the jury verdicts precluded him from taking into account Mr Williams' death or the grievous bodily harm suffered by him.

86 He accepted the submissions of the Crown that this was an attack upon a complete stranger at the deceased's own house and it just so happened that he was the first person the applicant saw. The attack was indiscriminate and inflicted without warning. It was a forceful blow. He accepted that the circumstances indicated a strong need for both general and personal deterrence, particularly because the applicant was determined to take the law into his own hands. He was setting "an appalling parental example". In his Honour's view the applicant had gone to the Williams' house intent on revenge for whatever had happened to his son.

87 His Honour correctly noted that the maximum statutory penalty for the offence of which the applicant had been convicted was 5 years imprisonment. He then concluded that in the circumstances, a term of 3 years imprisonment was appropriate.

88 Ground 1 is a general ground and for that reason and because it also raises matters the subject of other specific grounds, I propose to deal with it last.

Grounds 2 and 3: Indication of plea of guilty

89 The first written offer that the applicant would plead guilty to assault occasioning bodily harm was a letter from Mr Cannon to the Crown dated 17 December 2000. In that letter (AB 9) Mr Cannon says that he had made it clear at all times that the accused was prepared to forego any available plea of self-defence and plead guilty to that charge, and again, later, enquired whether "the renewal" of the offer to plead guilty to that offence could be accepted.

90 Ms Boston, who appeared for the applicant before the learned trial Judge, told him that there had been verbal indications from Mr Cannon to the Crown prior to the first trial that the applicant would plead guilty to assault occasioning bodily harm. She said that the sentencing transcript in relation to the first trial showed that Healy DCJ had accepted that. She said that it had always been the applicant's position that he would plead guilty to assault occasioning bodily harm, whereas the prosecution's position had always been that it would not accept such a plea in satisfaction of the indictment.

91 We did not have before us the transcript of the proceedings before Healy DCJ, so we do not know what his Honour said about the applicant's indication to plead guilty to assault occasioning bodily harm. In any event, whatever it may have been, it was not something which could bind the learned sentencing Judge and more to the point could not have been a factor to which Healy DCJ was required to have regard, because he was sentencing the applicant for the quite different and more serious offence of causing grievous bodily harm.

92 The ground asserts that Williams DCJ should have sentenced the applicant on the basis a plea of guilty was entered at the earliest opportunity. That cannot succeed as expressed, because the applicant did not enter a plea of guilty at the earliest opportunity (nor at all). As argued, it was put on behalf of the applicant (Applicant's Outline [6]) that his Honour allowed no discount for the indication that the applicant would plead guilty to assault occasioning bodily harm, although it was taken into account in the sentencing process as showing remorse. Self-evidently, those propositions cannot stand together.

93 Section 8(2) of the Sentencing Act 1995 (WA) ("the Act") provides that:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."

94 The section clearly contemplates mitigatory effect being given not only to the formal entry of a plea of guilty, but to "an indication" that a plea of guilty will be made. But that does not detract from the proposition that the extent to which such a plea or indication will be given weight thus reducing the severity of the sentence, will always depend upon the circumstances of the particular case. There is no statutory formula. The authorities do not dictate any specific discount and nor could they do so.

95 Nonetheless, the fact that the statutory provision itself allows an indication that a plea of guilty will be made as a mitigating factor, means the submission made by the Crown that such effect is only to be attracted by the actual entering of the plea, cannot be accepted.

96 The general principles applicable to the effect of the plea of guilty and the sentencing process were explained by the High Court in Cameron v The Queen (2002) 209 CLR 339.

97 The majority in that case (Gaudron, Gummow and Callinan JJ) pointed out (at [11]) that remorse is not necessarily the only subjective matter revealed by a plea of guilty - such a plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice. Their Honours detected a tension between s 7(2)(a) and s 8(2) of the Act. The former gives effect to the common law requirement that an offender must not be penalised for pleading not guilty. As their Honours said (at [13] - [14]):

"[13] It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.

[14] Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing."

98 Thus the issue is (see [22]) to what extent the plea of guilty indicates remorse, acceptance of responsibility and willingness to facilitate the course of justice. A significant factor in that regard is whether the plea was entered at the first reasonable opportunity.

99 In the present case, the applicant never did enter a plea of guilty to assault occasioning bodily harm. When arraigned on the indictment he pleaded not guilty to causing grievous bodily harm and assault occasioning bodily harm. That was said to be (as was accepted by his Honour) for tactical reasons. It remains unclear to me what those tactical reasons could realistically have been.

100 The fact is though, that the learned sentencing Judge took into account as a mitigating consideration, that the applicant had given a formal indication by way of letter from his solicitor in December 2000, that he was prepared to plead guilty to the offence of assault occasioning bodily harm. He did not give the applicant the full benefit of a plea of guilty because none was ever entered.

101 It is clear his Honour accepted the applicant was genuinely remorseful. The indication that he was prepared to plead guilty to assault occasioning bodily harm is arguably some evidence of an acceptance of responsibility for the punch and the injury occasioned by it, although the applicant's failure to actually enter a plea of guilty to that offence at trial detracts from that conclusion and does not indicate a willingness to facilitate the course of justice to that extent. As against that, the applicant's foreshadowed attempt to enter a plea of guilty before the Chief Judge of the District Court in February 2002, was stultified when the Crown's attempt to file a nolle prosequi and a new indictment to prevent him doing so, was adjourned by his Honour. That has to be considered in the context in which it occurred. The defence position was that in light of the ruling by Murray J in R v Nguyen given on 5 February 2002, if the applicant entered a plea of guilty to assault occasioning bodily harm, the court would be obliged to accept it in full satisfaction of the indictment, despite the Crown's opposition. It would be difficult to take any view of a plea of guilty in those circumstances as indicating anything other than a desire to achieve the very substantial benefit of a conviction of the lesser offence as a trade-off for removal of the prospect of any trial on the more serious offence charged.

102 In all the circumstances, no demonstrable error has been shown in the way in which the learned sentencing Judge approached the issue of the applicant's indication that he was prepared to plead guilty to assault occasioning bodily harm. These grounds must fail.

Ground 4 - Factors not supported by evidence

103 No particulars were given of this ground. None were mentioned in the applicant's outline of submissions. No submissions were directed to this ground in oral argument. There is nothing in the materials before us to suggest the learned sentencing Judge did take into account factors which were not supported by the evidence. All that being so, this ground must fail.

Ground 5 - Failure to identify the bodily harm

104 It is true that his Honour did not identify the bodily harm which was the basis of the sentence. His Honour did say what was not the bodily harm suffered. We do not have the transcript of his Honour's directions to the jury and so do not know what injury or injuries to the deceased he left to the jury as the relevant bodily harm.

105 In her sentencing submissions, Ms Boston put to his Honour that the bodily harm could only have been that which was reasonably foreseeable from a single punch to the face, such as split lip or a blood nose. The Crown prosecutor, Mr Dempster, put to his Honour that in terms of bodily harm or injury, this case could not be higher on the scale and "... is at the absolute top of the scale for bodily harm" (t 470). In response to that the learned sentencing Judge pointed out that the jury had found the applicant was not criminally responsible. The Crown prosecutor repeated the submission, specifically asserting that the relevant injuries were the serious brain injuries "... which led to death assessed as amounting to bodily harm in the context of non-accidental harm" (ibid). His Honour again pointed out that whether the event was death, grievous bodily harm or bodily harm, it had been found to be an accident. (That last reference appears to have been a slip by his Honour. It was not in fact so, and his Honour's other remarks show clearly enough he was referring only to the death and the grievous bodily harm). The Crown prosecutor repeated that in assessing what the bodily harm was, one had to view the injuries and take those into account to the extent it was non-accidental bodily harm and that in relation to those injuries, they could not be lower (sic: higher) on the scale. He reiterated that in that sense this was one of the worst cases of the sort.

106 In his sentencing remarks the learned sentencing Judge acknowledged that he could not sentence the applicant for, nor take into account the fact that Mr Williams died or that he suffered grievous bodily harm.

107 On the conclusion of his Honour's sentencing remarks, he having not mentioned what the bodily harm was in respect of which he was sentencing the applicant, there occurred the following exchange (t 478):

"BOSTON, MS: Sir, there is only one issue and perhaps I'm unclear. What - your Honour made the finding of assault occasioning bodily harm in this matter.

WILLIAMS DCJ: Those are my sentencing remarks, Ms Boston.

BOSTON, MS: As the court pleases."

108 At no point therefore, had his Honour identified what the bodily harm suffered by Mr Williams actually was. That was an important and unfortunate omission. Bodily harm is an element of the offence of which the applicant had been convicted. The nature of the physical injury suffered by a victim is obviously a significant factor in the exercise of the sentencing discretion. It should have been identified.

109 For the purposes of this appeal however, the matter became otiose.

110 At the outset of the hearing Mr Cannon informed the Court that as a result of discussions between him and counsel for the respondent, it had been agreed to proceed on this appeal on the basis that it had to be accepted the learned sentencing Judge had taken the relevant bodily harm to be the minor kind of injury, such as bruising or a split lip, which one would ordinarily expect to be caused by a single punch to the face.

111 As I understood counsel for the applicant, he was accepting that the learned sentencing Judge must be taken to have sentenced the applicant on the basis agreed and accordingly the ground was not being pursued.

112 Six victim impact statements were handed to the learned sentencing Judge following the applicant's conviction of assault occasioning bodily harm. The Crown prosecutor explained that five were simply copies of victim impact statements which had been handed up at the conclusion of the first trial and the sixth was that of Mr Williams fiancée who had read it to the court following the first trial. That had now been reduced to writing. Apart from that of Ms Williams, the statements were from the mother of Mr Williams' daughter (written on her behalf), Mr Williams' mother, his father and his sister. All were specifically expressed to be provided in relation to the charge of manslaughter and were dated 21 August 2000. There was a further handwritten statement from Mr Williams' mother dated 30 July 2000.

113 These statements set out the tragic and heartrending impact of Gavin Williams' death on his family and fiancée. They speak of his life, his character, his hopes, their times together, their plans and expectations and the emotional trauma and devastation they have suffered and continue to suffer by his loss.

114 It is to be expected that those close to Gavin Williams would see things in light simply of the fact that as the result of an unprovoked assault on him by the applicant punching him to the face, Gavin Williams died. That is what happened. There was no dispute at any stage that the applicant caused the death of Mr Williams. But tragic events sometimes occur by accident in circumstances which the community regards as not calling for conviction and punishment of the offender for the accidental result. Parliament has recognised this by those provisions of the law which say that a person is not criminally responsible for an event which occurs by accident. So it was that in the circumstances of this case, if the death (or grievous bodily harm) was not intended by the applicant, was not foreseen by him and was not reasonably foreseeable as a consequence of his punching Mr Williams once to the face, he was not criminally responsible for the death or grievous bodily harm. That is the explanation for the jury verdicts in this case.

115 As the learned sentencing Judge correctly appreciated, by those verdicts the jury in each instance had determined that the applicant was not criminally responsible either for the death of Mr Williams or the brain injuries suffered by him.

116 The term "criminally responsible" means "liable to punishment as for an offence" (s 1(1) of the Criminal Code) and so as his Honour further correctly appreciated, the jury verdicts necessarily meant the applicant could not be punished either for the death of Mr Williams or for the grievous bodily harm suffered by him (that being the severe injuries to his brain).

117 The statutory provisions relating to victim impact statements are contained in Division 4 of Part 1 of the Act. They were discussed by Kennedy J in Mitchell (1998) 104 A Crim R 523 at 525 - 526. His Honour referred to s 13, s 24, s 25 and s 26. They are in the following terms:

"Section 13 of the Sentencing Act defines 'victim', in relation to an offence, to mean:

'(a) a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;

(b) where the offence results in a death, any member of the immediate family of the deceased.'

Sections 24, 25 and 26 of the Act deal with the contents of statements. They provide as follows:

'24. (1) A victim, or a person who may do so under subsection (2), may give a victim impact statement to a court to assist the court in determining the proper sentence for the offender.

(2) If because of age, disability or any other reason a victim is personally incapable of giving a victim impact statement, another person may give it on the victim's behalf if the court is satisfied that it is appropriate for that other person to do so.

25. (1) A victim impact statement is a written or oral statement that −

(a) gives particulars of any injury, loss, or damage suffered by the victim as a direct result of the offence; and

(b) describes the effects on the victim of the commission of the offence.

(2) A victim impact statement is not to address the way in which or the extent to which the offender ought to be sentenced.

(3) A victim impact statement may be accompanied by a report by any person who has treated the victim in connection with the effects on the victim of the commission of the offence.

26. (1) A court may make a written victim impact statement available to the prosecutor and to the offender, on such conditions as it thinks fit.

(2) A court may rule as inadmissible the whole or any part of a victim impact statement.'"

118 Significantly, in Mitchell Kennedy J stressed (525) that although the statutory introduction of victim impact statements was to involve victims more directly in the sentencing process and to inform sentencing Judges of the actual, rather than the assumed, consequences of crimes, the obligation of the sentencing Judge remains to be to give effect to the principles of sentencing set out in the Act. His Honour also pointed out (526) that there is an obligation upon a prosecutor who tenders a victim impact statement to ensure as far as possible that it complies with the requirements of the Act. Ipp J made a similar observation (at 533).

119 When dealing with the victim impact statements the learned sentencing Judge said in his sentencing remarks (t 477):

"I propose to make use of the victim impact statements on the basis of the comment made by the Chief Justice in the Court of Criminal Appeal in the appeal in relation to this matter on the first trial; that is, I propose to take into account in the sentencing process that a consequence of the attack on Mr Williams has been the shock, the grief, the tragedy which has had to be endured by all who knew and loved him. As I have said, that is quite apparent from a reading of the victim impact statements."

120 As his Honour indicated, this was a reference to no more than a comment made by the Chief Justice in the course of submissions on the first appeal. The Chief Justice was responding to a submission by counsel for the respondent that the Crown was not suggesting that the applicant be punished for something for which he was not convicted, namely manslaughter. That was accepted, but what was being put was that if as a result of the conviction for grievous bodily harm, those who were near and dear to the victim had also suffered, then that was a relevant feature which could be taken into account on sentence.

121 It was in response to that submission that the Chief Justice said:

"MALCOLM CJ: It could perhaps be put this way: although from the legal point of view he did not cause death, or he did not reasonably foresee that death would be caused, nonetheless as an actual consequence of what happened death was caused and while he may not be legally responsible for the death, there is a degree of moral culpability involved in the death which can be taken into account and even if it can't strictly be taken into account in the way in which I have mentioned, a consequence of the attack on the deceased man has been the shock, the grief, the tragedy, which has had to be endured by all of those who knew and loved him."

PALLARAS, MR: Your Honour, yes.

MALCOLM CJ: It can't be overlooked in the sentencing process."

122 As I read what was said by the Chief Justice on that occasion, his Honour was not articulating a particular proposition as a statement of law. He was, rather, seeking to frame counsel's submission in the way most favourable to counsel's argument. His Honour was not saying he accepted that as a correct statement of the law.

123 It was, in my view, quite inappropriate for counsel before the learned sentencing Judge to refer to remarks of this nature made per incuriam and in the course of argument, as authority for any proposition of law - or indeed, at all. As it happened, the appeal against conviction in that instance was allowed and the Court said nothing about the application for leave to appeal against sentence, because that fell away with the conviction.

124 It is wrong in principle for an offender to be punished for an offence of which he or she has not been convicted (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 per Gibbs CJ; Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1 at 5 per Deane, Dawson, Toohey, Gaudron and McHugh JJ). The authorities recognise that caution is necessary where circumstances of aggravation relied upon may themselves constitute a separate offence or separate offences (cf Teremoana v The Queen (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).

125 The point is crystallised with greater clarity here, of course, because of the applicant's acquittal of manslaughter and causing grievous bodily harm.

126 As Ipp J pointed out in Mitchell, supra (at 531), plainly, the tendency of a victim impact statement will ordinarily be to increase the sentence that would otherwise be imposed. That could have been the only effect of the victim impact statements here. Since they were concerned only with the tragic death of Mr Williams and the consequences of that to the persons concerned and the purpose of a victim impact statement is to assist the court in determining the proper sentence for the offender (s 24(1) of the Act), it necessarily follows that the applicant's punishment was increased on that account - yet he was not criminally responsible for the death and could not be punished for it. The exercise of his Honour's sentencing discretion accordingly miscarried in that way.

127 There is a further point. When the offence results in death, any member of the immediate family of the deceased is a "victim" as defined in s 13 of the Act and may give a victim impact statement. Here, "the offence" was assault occasioning bodily harm. That offence did not in law result in death. The death was an accident. By s 25(1)(b) of the Act, a victim impact statement is one which describes the effects on the victim of the commission of the offence. Again, that offence was assault occasioning bodily harm. The statements tendered here exclusively describe the effects on the victims of Mr Williams' death. That was not an effect of the commission of the offence. The statements being so directed and confined, they were not admissible as a matter of law and the learned sentencing Judge erred in not upholding the defence objection to them on that basis. These grounds are made out.

Ground 8 - Previous imprisonment, bail and disruption to the applicant's life

128 No argument was advanced specifically in respect of this ground. The transcript reveals that there was discussion between his Honour and counsel about the extent to which allowance should be made for the time the applicant had been in custody, whether under the sentence of imprisonment in respect of the earlier conviction for causing grievous bodily harm, or in pre-trial custody. Counsel agreed upon the number of days which should be allowed and it was in accordance with that agreement that his Honour backdated the sentence to 14 October 2002. There is nothing in this ground.

129 In Kilner v The Queen [1999] WASCA 189 the applicant had been convicted on his plea of guilty of two counts of assault occasioning bodily harm. He was sentenced to 8 months imprisonment on the first count and 16 months imprisonment on the second, to be served cumulatively, a total of 2 years imprisonment. The assaults were serious and sustained. The applicant and the complainant were at the bar of a hotel belonging to the applicant's father. The complainant was intoxicated and had been annoying female patrons. He had been refused service at the bar on three occasions. The applicant himself was also under the influence of alcohol. The applicant confronted the complainant and without warning punched him in the mouth with his fist. The complainant did not fight back, explaining to the applicant that he would not do so because as the result of a traffic accident he had a hole in his head. Despite that the applicant kneed the complainant in the groin, struck him multiple times in the head with his fist and inflicted a number of head butts. The applicant then returned to his group of friends. From this assault the complainant sustained bruising and a large laceration to his forehead. Approximately 10 minutes later, the applicant saw the complainant again in the bottle shop. He approached the complainant and punched him in the head with his fists. The complainant fell to the ground and although he offered no resistance, the applicant, who was wearing steel-capped boots, kicked him in the groin, head and side. The complainant was unconscious and eventually taken to hospital by ambulance. The incident left him with two swollen black eyes, extensive bruising to the face, two chipped teeth and impaired vision in his right eye. The laceration to his forehead required 15 stitches. The Court of Criminal Appeal upheld the sentence, holding that it was not manifestly excessive.

130 In upholding the sentences, Ipp J (with whom Wallwork and Parker JJ agreed) referred to a number of other cases involving sentences for assault occasioning bodily harm.

131 In Tan v The Queen, unreported; CCA SCt of WA; Library No 960188; 1 April 1996 the assault followed a transaction in which the applicant purchased drugs from the complainant, which he later discovered were without value. The applicant, in company with others, attacked the complainant with a spanner and struck him on the wrist causing a fracture that required the insertion of a plate. He was sentenced to 2 years imprisonment which was upheld on appeal.

132 In Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996 the appellant threw glasses and other objects at the complainant in a hotel. The appellant and another also punched and kicked the complainant about the head and body. The complainant sought shelter but was attacked again. The assault lasted several minutes. The complainant suffered a displaced fracture to his left cheek ligament, damage to his left arm and severe bruising to his face, chest and back. He needed plastic surgery to heel the fractured cheek. The appellant was sentenced in a Court of Petty Sessions to 18 months imprisonment. In dismissing the appeal, Scott J said the appellant was "extremely fortunate to have been dealt with as leniently as he was".

133 R v Brand, unreported; CCA SCt of WA; Library No 980590; 9 October 1998 was a case involving assaults of a very serious kind by two offenders. The victim was struck on the head, arms and back with various implements and received extensive lacerations to the head. Boiling water was poured over her, as a result of which she suffered extensive third degree burns and was hospitalised for four weeks. Both offenders were affected by alcohol at the time. Murray J observed that it was difficult to imagine a more serious form of assault occasioning bodily harm, although there were powerful mitigating circumstances, including a fast-track plea of guilty and the fact that the respondent and the victim were Aborigines and it was a pay-back situation. The sentencing Judge imposed community based orders for 2 years. On a Crown appeal the Court of Criminal Appeal substituted sentences of 2 years imprisonment.

134 Other cases referred to by Ipp J were Toomath v The Queen, unreported; CCA SCt of WA; Library No 990107; 9 February 1999; Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999 and Casserley v The Queen, unreported; SCt of WA; Library No 990164; 31 March 1999. To those I would add Hinchcliffe v The Queen [2001] WASCA 15 in which the applicant was convicted on his plea of guilty to two offences in respect of which he was sentenced to 3-1/2 years imprisonment on the first and 2-1/2 years on the second, to be served cumulatively, a total of 6 years imprisonment. The complainant in respect of count 1 was the applicant's wife. They were living separately at the time. The applicant had discovered that his wife had been having a sexual relationship with another man. He was the victim the subject of the second count. The applicant went to the family home in Rockingham and assaulted his wife by punching and kicking her. She suffered a ruptured lung, a fractured rib, a fractured nose, a perforated ear drum 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. She required hospitalisation. In respect of the second count, the applicant went to the other man's place of employment in the company of another male. That complainant was seated at his workplace having his lunch. The applicant approached and punched him in the head several times. The victim suffered a blood nose, a blackened eye and bruising to the ribs on both sides. The Court of Criminal Appeal held the sentences imposed to be well within the appropriate range.

135 Even making full allowance for the difficulty of comparison because of the different circumstances of different cases, it is apparent that the sentence of 3 years imprisonment imposed in this case for an assault constituted by one punch to the face and resulting only in bruising and other minor injury, was in all the circumstances, quite disproportionate. In my view it was manifestly excessive. I would uphold this ground.

136 The exercise of the learned sentencing Judge's discretion having miscarried for the reasons set out above, it falls to this Court to quash the sentence and pass such other sentence as ought to have been passed (s 689(3) of the Criminal Code).

137 The applicant is a mature man and a first offender. He did evince some concern for his victim after the assault. He did indicate a preparedness to plead guilty to the offence of which he was ultimately convicted, although he did not actually plead guilty to it for what counsel described as tactical reasons. The bodily harm actually caused was relatively minor.

138 It is true the assault was constituted by a single punch, but it was a sudden punch to an unsuspecting victim who had given no provocation nor cause for it. It was a strong punch, forcefully delivered, as was evident from the description of it given by Mr Waldron. The applicant was angry. It was not a matter of defending his son. He took the law into his own hands. He was bent on revenge. He wanted to teach someone a lesson and he was not concerned to make sure he got the right person. The assault was indiscriminate. It was enough that his victim was on the same premises from which he believed whoever had struck his son earlier, had come. There was no excuse for his conduct. It was in the presence of his son and was, as counsel submitted, an appalling parental example. The offence was deliberate. It was not an instinctive nor immediate reaction to a situation with which he was suddenly confronted. It calls for a penalty which gives substantial emphasis to the need for both personal and general deterrence. Considerations personal to the applicant carry less weight in those circumstances. But they must be taken into account, both in considering whether a sentence other than imprisonment is appropriate and whether, if imprisonment must be imposed, a suspended sentence would be sufficient.

139 In my view a sentence of immediate imprisonment was required and the appropriate term was one of 2 years imprisonment, backdated to commence on 14 October 2002 to take account of the time he had already spent in custody and with an order that he be eligible for parole.