Evans v Vanderheide [2001] WASCA 352

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Nevermann v The Queen (1989) 43 A Crim R 347

1 McKECHNIE J: In the early hours of 29 January 2002, Mr Denniss was at Beaumaris Beach, Iluka. A little way apart, Mr Janerka and his girlfriend were sitting beside a small fire in the sand dunes. For some reason this attracted the attention of Mr Denniss who asked Mr Janerka to put the fire out. There was an exchange of words and the fire was kicked out, some of the sand being kicked at Mr Janerka and his girlfriend.

2 Apparently egged on by his girlfriend, Mr Janerka picked up an empty whisky bottle and approached Mr Denniss, asking if he could join their party. As he got close to him, he swung the bottle from behind his back and struck Mr Denniss to the face near the left eye. The injuries were serious and included lacerations to the right upper eyelid, left upper eyelid and left cheek; marked swelling around the left eye with evidence of ocular injury - manifested as a left corneal abrasion, left proptosis and left hyphaema (blood within the eye), together with a mild abrasion to the right cornea. There were multiple fractures around the left eye and evidence of bruising behind the eye. The time in hospital seemed to have been very unpleasant. Mr Denniss does not have clear vision in his left eye and it is not known whether he will recover normal vision.

3 After attacking Mr Denniss, Mr Janerka tried to flee but was restrained by others. On becoming aware of the nature of the injuries, he assisted in treating Mr Denniss until the ambulance arrived. He attended at Joondalup Detectives' office and made a full and complete confession in a video record of interview.

4 On 27 February 2002, Mr Janerka pleaded guilty to one charge of unlawful wounding.

5 After the facts had been read and counsel had commenced a plea in mitigation, the Magistrate, Mr Boothman, indicated that he was considering imprisoning Mr Janerka and remanded him on bail in order to obtain a pre-sentence report.

6 The matter came back before the Magistrate on 27 March 2002 when a comprehensive plea in mitigation was made. The Magistrate also had the benefit of the pre-sentence report.

7 In sentencing, the Magistrate, after making some general remarks said:

"The issue is this: in order to show that the courts and indeed the public will not tolerate someone being hit across the head or the face with a bottle, it warrants a sentence which says to the public, 'This is a deterrent.' In this situation this charge warrants a sentence of 18 months' imprisonment. ..."

8 The Magistrate then noted correctly matters of mitigation, including the plea of guilty, Mr Janerka's age and the element of contrition, before imposing a sentence of 8 months imprisonment.

9 The Magistrate then considered whether the sentence should be suspended. He said:

"A suspended sentence is one where I have to consider the issues of, again, rehabilitation. Given the shock and the instantaneity of the offence as against the complainant, I am of the view that once again this is not a matter where rehabilitation is something which I need consider any further. This is a proper deterrent sentence and a proper deterrent sentence is that you serve 8 months in custody."

10 On 12 April 2002, Justice Wheeler granted leave on the following grounds:

"(a) The learned magistrate made an error of law by deciding the question of suspending the sentence of imprisonment solely in terms of the rehabilitation of the Applicant; and

(b) The sentence was excessive in that a non-custodial sentence should have been imposed."

11 The essence of the appeal is that the Magistrate erred in failing to suspend the sentence. It is not contended that he was in error in deciding to impose a sentence of imprisonment. Nor is it suggested that a period of 8 months is other than proper.

12 The appellant's submission is that the error in the sentencing discretion was in failing to suspend the sentence.

13 The Magistrate clearly and correctly considered that the offence was so serious it warranted immediate imprisonment. He discounted the indicative sentence of 18 months to 8 months by reason, amongst other things, of the plea of guilty, prior good record, age and other matters of mitigation.

14 He then expressly considered the suspension of the sentence. He said:

"In the circumstances, I am of the view that the proper sentence then, given reductions for the things which I have mentioned just before, would warrant a sentence of 8 months' imprisonment. The question now arises whether or not that sentence of 8 months should be a suspended sentence.

A suspended sentence is one where I have to consider the issues of, again, rehabilitation. Given the shock and the instantaneity of the offence as against the complainant, I am of the view that once again this is not a matter where rehabilitation is something which I need consider any further. This is a proper deterrent sentence and a proper deterrent sentence is that you serve 8 months in custody."

15 As I read those words, the Magistrate is in effect concluding that the seriousness of the offence required the sentence to be served immediately and that this outweighed all other factors.

16 In Etrelezis v The Queen [2001] WASCA 327 the Court of Criminal Appeal upheld an appeal against a sentence of 3 years imprisonment by suspending that sentence. The appellant had been convicted after trial of grievous bodily harm of a type not dissimilar to that suffered by the complainant in this case.

17 No two cases are precisely alike and there are differences. In Etrelezis the blow was more instinctive than in the present case. He pleaded not guilty. In this appeal the appellant pleaded guilty at the first opportunity.

18 In determining whether to suspend the sentence in Etrelezis the Chief Justice said:

"... it was not appropriate in this case to attach to the actions of the appellant the same degree of criminal responsibility as a person who deliberately shoved a glass directly into the face of another person."

19 In the present case the prosecution's statement of facts asserted:

"At approximately 1.30 am on January the 29th 2002, the complainant was at Beaumaris Beach near Shenton Avenue, Iluka, along with another male and a female. He has approached the accused, who was sitting with his girlfriend beside a small fire in the dunes, and started telling the accused to put the fire out. The accused refused, and the two have exchanged words for a short period before the complainant and his friend kicked over the fire and put it out. Some of the sand has been kicked in the direction of the accused and his girlfriend prior to the complainant and friend departing for the beach area.

The girlfriend of the accused has indicated that she thought he was a coward for putting up with it, so the accused has decided to show her that he was not. He has picked up an empty whisky bottle he found lying on the ground and has concealed it behind his back, intending on confronting the complainant and striking him with the bottle and kicking him while he was down. He has approached the complainant and his friends, who were seated on the beach, and asked if he could join them. As he got near to the complainant he has swung the bottle from behind his back and struck the complainant to the face, striking him in the vicinity of the left eye. The bottle has shattered and the following injuries were received; fractured left cheek bone, which required surgery to have a piece of plastic inserted; right eyelid cut open requiring micro surgery to put back together. Doctors had found a hole in the left eye and the pupil has moved to cause the eye to wrinkle and the accused ... (on tape) ... has only blurred vision in this eye. It is not known if he will recover normal vision until further tests are completed.

The accused has attempted to flee; has been restrained by the complainant's friends. When he has seen the complainant's injury he has assisted by putting a shirt over his face and waiting for the ambulance.

He spoke to Joondalup detectives in February the 21st, 2002. Participated in a video record of interview. Made full confession of the offence as detailed."

"The facts are admitted, sir. Just prior to the facts that have been read out, Mr Janerka and his girlfriend had been at the beach. There was a small fire there up in the sand dunes. The complainant had come up to them and asked if he could join them, and they had said 'No,' and then went away, and then they came back and that's when the facts as you have heard continued about them continuing - - suggesting to put the fire out, and he - - and as you heard, he did nothing about it. His girlfriend got up and left. She in fact abused him for not doing anything to them, because she had been kicked - - because sand had been kicked over her. He then got angry and went to them. On his way he saw the bottle and picked it up. He instructs me he intended to actually hit him on the shoulder or somewhere about the body, and as he swung at him at the man turned towards him and he copped it in the eyes - - I'm sorry, I shouldn't say 'copped', he received the blow in the head area, around the eye. My instructions are that he proceeded - - as soon as he swung the bottle he proceeded to leave. He then realised the seriousness of the situation. He took his shirt off and put it - - held it to the man's head to stop the bleeding. He in fact called the ambulance. He waited there for the police and the ambulance to arrive. He helped them - - they had to get up some steps to the ambulance. He helped carry the stretcher up to the ambulance, and then went with the police, and as you have heard he has made a very frank and full admission in regard to his involvement.

He is a 19 year old man. He lives with his parents. He is a part-time employee at Kmart. He is a student at Edith Cowan University in Joondalup studying engineering."

21 Even accepting that the appellant did not intend to hit the face, he clearly intended to use the bottle and cause harm with its use.

22 In Etrelezis the Judge had made errors of fact which, amongst other things, caused the Court of Criminal Appeal to exercise the sentencing discretion afresh.

23 I have kept steadily in mind the decision in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. However, I am unable to detect error in the reasoning of the Magistrate.

24 It is clear that the Magistrate weighed up all the appropriate matters carefully, having had the benefit of a pre-sentence report and submissions by counsel. The matters in mitigation put to before me were all in front of the Magistrate.

25 An appellate court cannot intervene simply because it might have imposed a different sentence. There must be an error in the sentencing discretion.

26 It was open to the Magistrate to conclude that, notwithstanding all of the personal matters, the offence was so serious that a term of imprisonment to be served immediately was warranted.