Court of Appeal (WA)|2001-04-17|Before: Miller J

Johnson v Hayter [2001] WASCA 118 (17 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JOHNSON -v- HAYTER [2001] WASCA 118

Criminal law - Sentence - Assault occasioning bodily harm - Assault by father of pupil on Deputy Principal of primary school - Whether imprisonment the only option

1 MILLER J: The appellant was charged in the Court of Petty Sessions at Busselton that on 7 August 2000 at Busselton he unlawfully assaulted Philip Edward Green and thereby did him bodily harm, contrary to the provisions of s 317(1) of the Criminal Code. That section provides a maximum penalty of imprisonment for 5 years for the offence, but upon summary conviction the maximum proscribed is imprisonment for 2 years or a fine of $8000.

2 In this case the appellant elected summary jurisdiction and was dealt with in the Court of Petty Sessions at Busselton on 6 November 2000. On that day he pleaded guilty to the offence charged, that plea being entered one day ahead of a projected trial at which it had been indicated that the appellant would plead not guilty. He had been remanded on a number of occasions awaiting that trial.

3 The learned Magistrate who heard the plea imposed upon the appellant a sentence of 12 months' imprisonment with eligibility for parole. He gave detailed reasons for his decision.

4 On 1 December 2000 the appellant was granted leave to appeal from the decision of the learned Magistrate, the ground of appeal being that the Magistrate had erred in imposing the sentence of imprisonment in that he should have imposed either a fine or suspended term of imprisonment. Particulars of error referred to the appellant's antecedents; his employment, financial and family situation; his plea of guilty; and evidence of previous good character.

5 The facts of the case were outlined to the learned Magistrate by the prosecutor in the following terms:

"PROSECUTOR: Thank you, sir. 2.50pm on Monday, the 7th of August this year, the accused went to the Busselton Primary School situated in Geographe. The accused was there to collect his two children who required -- who required treatment at home at the request of the complainant in this matter, Phillip Edward Green, a 51 year old acting deputy principal. The complainant approached the accused in the front foyer of the school whilst the accused was speaking to the receptionist.

The accused struck the complainant to the face striking him on the nose, causing his eye to water and a numbness to his nose and to the top lip area. The accused spoke in a loud voice to the complainant and when the complainant went to speak the accused struck the complainant with a clenched fist striking him in the mouth. This caused the complainant to stumble backwards, blood streaming from the complainant's mouth and he retreated to another room. The accused left the premises a short time later. The accused was spoken to by police on the 9th of August and declined to be interviewed either on or off video.

The complainant sustained two splits to the lower lip and a lower fracture to the lower jaw -- and a fracture to the lower jaw ..."

6 These facts were expanded by the tender of a number of witness statements, including that of the complainant Green. Mr Green, who was 51 years of age and acting deputy principal at Busselton Primary School, declared in his statement that on 7 August 2000, having been informed by staff members that two of the Johnson children had been detected as having head lice, he telephoned Ms Kellie Nichols, the nominated person on school records, to advise that her children would need to be collected from the school. He stated that Ms Nicholls had responded by swearing at him and maintaining that the problem was that of the school. When she was requested to come to the school and take with her a video on treatment procedure she informed Mr Green that Peter (the appellant) would collect the children. Shortly thereafter Mr Green heard Peter Johnson identify himself in the main office of the school and he approached him. He introduced himself and according to his statement, what followed was as follows:

"He turned to his right slightly and said, 'Are you Mr GREEN?'

I said, 'Yes'.

He immediately backfisted me to the face.

By this I mean he clenched his right fist and in a backhanded motion, struck me in the nose.

I felt numbing and pain to my nose and upper lip area, my eyes watered up and it was a great discomfort.

He said, 'Don't you ever talk to my wife like that again. You told her she's not doing her job right.'

I went to explain the circumstances.

With a clenched right fist he punched me in my mouth."

Statements from other witnesses to the event were in similar, if not identical terms.

7 A victim impact statement from the complainant was considered by the learned Magistrate. In it the complainant stated that as at 25 August 2000 he was experiencing trouble with his jaw in that he was unable to eat properly, unable to chew and his "teeth did not line up". He did state, however, that a specialist was of the view that his jaw should return to normal in the future. Perhaps more importantly, the complainant stated that his emotional and psychological state was affected by the incident and he felt very vulnerable and lacking in confidence. He felt so intimidated that security guards were placed at the school and at his home because of his concern that the appellant would "get him". There was no medical report before the learned Magistrate which indicated the extent of the complainant's injuries, but it is sufficient to say that a fractured jaw was a severe injury.

8 The appellant was represented before the learned Magistrate by counsel. He put a lengthy plea before the Magistrate, pointing out that his client was 39 years of age and a dairy farmer in the Busselton area. He had six children, three of whom were living with him and his present partner and he was said to be dedicated to his family. Details of the appellant's family history as farmers in the area was given to the court and it was pointed out that the appellant had no prior convictions for assault. He was said to have understood the seriousness of the offence, although it does not appear that he was said in any way to have been remorseful. Of course his plea of guilty indicated a degree of remorse, but the extent to which the matter was the subject of submission was as follows:

"The assault was not pre-meditated, it was on the spur of the moment. He understands that there's no excuse for his actions but by way of explanation his action stems from being pre-occupied by what his wife --- by seeing his wife upset and --- and by the telephone conversation. The assault occurred very quickly. The defendant retreated on his own accord. He's entered a plea of guilty. It's unlikely that he will re-offend in this way in the future, the offences are out of character. Moreover he has no intention of communicating or having anything to do with Mr Green in the future.

Indeed, he wants to withdraw the children from the school at the end of this year and therefore have nothing further to do with the school."

9 Counsel for the appellant put to the Court that a sentence of imprisonment would cause financial penalty for the appellant and his business partners in the dairy farm, they being his mother and father. It was pointed out that the bank overdraft for the farm was at its limit and it would be necessary to increase that limit if the appellant was imprisoned because additional labour would be required, the appellant's father being unable to assist. Various character references were submitted to the court and it was submitted that if a sentence of imprisonment was the only appropriate disposition of the matter, that sentence should be suspended.

10 The learned Magistrate took time to consider the matter and later on the day of the plea delivered his reasons. After recounting the facts of the case the learned Magistrate stressed that it was important to appreciate the circumstances in which the assault had occurred, they being in the reception area of a primary school where the victim was a person who had responsibility. The learned Magistrate stressed that assault occasioning bodily harm was a serious offence and pointed out that it carried a maximum penalty of imprisonment for 5 years, although when dealt with summarily the maximum provided was imprisonment for 2 years or a fine of $8000. In this respect the learned Magistrate was correct to recognise that the statutory maximum for the offence of assault occasioning bodily harm is a sentence of imprisonment for 5 years, notwithstanding that when dealt with in summary jurisdiction that maximum is reduced. This was made clear in Ravi-Pinto v Power, unreported SCt of WA (Murray J); Library No 930647; 26 November 1993 and Casserly v The Queen, unreported; SCt of WA (Scott J); Library No 990164; 31 March 1999. In the latter case, Scott J made the following observations which are relevant to this case:

"The appellant was charged with assault occasioning bodily harm under s 317(1) of the Criminal Code. That offence carries a maximum term of imprisonment of 5 years. The section does, however, provide that on summary conviction the maximum term is imprisonment for 2 years or a fine of $8,000. Whilst it is true to say that the term of 2 years' imprisonment without parole imposed by the learned Magistrate was the maximum that she was permitted by law to impose, it is not right to suggest that the penalty imposed was the maximum provided for the offence: in Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993 Murray J said at 13:

'Of course it is the case that, upon indictment, the offence of burglary is punishable by up to 14 years imprisonment. The penalty of two years imprisonment, or a fine of $8,000, represented, in the circumstances of the case, the maximum punishment which may be awarded by a Court of Petty Sessions dealing with such a case upon the election of the defendant. It is a jurisdictional limit and in no sense a maximum penalty to be reserved for the worst cases of the type.' "

11 The learned Magistrate stressed the severity of the injuries sustained by the victim, noted what was contained in the victim impact statement and then said:

"I have today necessarily had the benefit of an extensive plea in mitigation and to which the court is properly directed to your plea of guilty. As regards to that it is to be noted that necessarily it was not a plea of guilty that was made at the first reasonable opportunity. It was a plea of guilty made shortly before or some days indicated before the date that was fixed for trial and necessarily with the benefit of the statements it would seem to me that the plea of guilty is proper in all the circumstances, given the overpowering case for the prosecution. There were a number of independent witnesses to the event.

It is otherwise indicated, and again properly so, that you have no relevant prior record. Whilst you have a record it's fair to say that it's exclusively of a vehicular nature or in fact in some minor ways incidences related to the Firearms Act breaches, to which there might also be said that there are the testimonials or references that have been provided to the court which indicate that this is an exceptional course of behaviour by you as being a person who is not prone to violence or assaults. In fact it would appear that each of the referees has indicated this is quite an exceptional course of behaviour on your part giving necessarily your previous position and concerns for not only your own children but others."

12 This passage indicates that the learned Magistrate properly appreciated that the appellant had pleaded guilty, and in my view he clearly took it into account in the sentencing process. He rightly pointed out, however, that the extent to which a plea of guilty by an offender will be a mitigating factor depends very much upon the time at which it is entered: Sentencing Act 1995, s 8(2). In my view the learned Magistrate was entirely correct to conclude that the plea of guilty was inevitable in the face of the witness statements which were available. Proper account was also taken by the learned Magistrate of the antecedents of the appellant and consideration given to the various character references that were tendered on his behalf. Reference was made to the fact that no contrition or remorse had been expressed, and in my view that was a correct assessment of the situation. The learned Magistrate did, however, appreciate that the plea of guilty of itself indicated some element of remorse, saying "there is nothing put before the court which would suggest that you regret the action, save but your plea of guilty".

13 The learned Magistrate's final observations were as follows:

"The Act and the assault occurred in an environment of a primary school. It was an assault, as I say, unprovoked, unexpected with a degree of skill and force applied to a person who was charged with the responsibility within that environment. There is an expectation both from the individual victims, his colleagues in that environment and elsewhere and within the community, that those persons charged with those responsibilities will have the protection both of the community and the law. To that extent any penalty imposed must have considerations of deterrents, both general and personal, so as any person who might be minded to behave in a similar fashion will have a clear appreciation of the communities and the court's perspective.

So far as you are concerned it is not a minor assault, it is a serious assault that involves significant injury both physical and psychological to the complainant. Those effects will continue, no doubt, upon the psychological indications for some considerable time. It is the fact that I've been referred to the most recent High Court decision of Dinsdale which I have had the opportunity of reading which appears to have resolved some uncertainty that existed within this state as to the application of a suspended period of imprisonment and in particular I read the decision of his Honour, Kirby J, which now confirms in all the circumstances that necessarily the court when considering the suspension of a period of imprisonment is to have regard to all the circumstances.

That is circumstances personal to an offender, including as was the debate before, rehabilitation and the objective features of the conduct. It is a duplication of the process and a consideration necessarily undertaken as the appropriate disposition. So far as you are concerned I have undergone that process of assessment and necessarily in the circumstances it is still my respectful view that it is a very serious course of conduct. In all the circumstances in which in my again considered view is that the deterrent considerations far outweigh those that apply to you personally.

In my respectful view no disposition short of immediate imprisonment will suffice. You are in the circumstances sentenced to 12 months imprisonment. However, in the circumstances of it being your first offence it is appropriate that you be declared eligible for parole and I so do."

14 This passage indicates that the learned Magistrate took the view that a deterrent sentence was important in the circumstances of the case and that nothing other than a sentence of imprisonment was appropriate. His Worship clearly appreciated that the court could not impose a sentence of imprisonment unless it was of the view that the seriousness of the offence was such that only imprisonment could be justified: Sentencing Act 1995, s 6(4)(a). Consideration was then given to the question whether that sentence of imprisonment could be suspended and his Worship clearly appreciated the import of the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538, particularly the views of Kirby J at [85] - [87] where his Honour favoured the view that factors other than merely the question of rehabilitation or "mercy in the particular case" might justify suspension of a sentence of imprisonment. His Honour there said:

"[85] ... the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.

[86] Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the 'complete discretion' which, subject to the statue, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.

[87] The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation of the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits, in a particular case, the exploration of alternatives to immediate custodial punishment."

Gaudron and Gummow JJ agreed with the reasons of Kirby J in this respect.

15 The submissions made on behalf of the appellant at the hearing of the appeal stressed the appellant's antecedents; his employment, financial and family situation; the plea of guilty entered on his behalf: and the evidence of his previous good character. It was suggested that the learned Magistrate had failed to give sufficient weight to the plea of guilty and complaint was made that no indication had been given by the learned Magistrate as to what weight was attributed to it. However, as was made clear by Malcolm CJ in Verschuren v The Queen (1996) 17 WAR 467 it is unnecessary to recite the percentage discount given to a sentence by reason of the plea of guilty, as long as it is "assigned to the sentencing process" (see particularly Malcolm CJ (with whom Pidgeon J agreed) at 473). In The Queen v Thomson [2000] NSWCCA 309; (2000) 115 A Crim R 104, the Court of Criminal Appeal of New South Wales, in a guideline judgment, considered that a greater degree of transparency in the sentencing process is required to meet the objective of encouraging guilty pleas, and held that a sentencing Judge should explicitly state that a plea of guilty has been taken into account and where possible, quantify the effect of the plea on the sentence. The utilitarian value of a plea to the criminal justice system was assessed by the court as being in the range 10 - 25 per cent discount on sentence. Spigelman CJ made specific reference to the Western Australian position, summarising the views of the Court of Criminal Appeal (at 127) in the following way:

"These issues have most recently been considered in Western Australia in Verschuren. Malcolm CJ made it clear (at 469; 2-3) that there was no tariff or fixed percentage applicable to a discount for a plea of guilty. His Honour referred with approval to prior authority in the court in which an early plea of guilty under that State's 'fast track system' attracted a discount of the order of 20-25 per cent and 30-35 per cent. His Honour noted that there were different views expressed in the court as to whether a sentencing judge should inform the offender of a specific figure or percentage of the reduction on account of plea. His Honour also referred to the divergence of views in other courts, for example, Perrir (No 2) and Pavlic. His Honour identified the 'intuitive synthesis' approach and also referred to the judgment of Gleeson CJ and Hunt J in Gallagher and of McGarvie J in Nagy. His Honour indicated that he agreed with the conclusions of Slicer J in Pavlic at 206; 30 that a two stage process was appropriate and that, initially, a sentence should be determined in accordance with the 'intuitive synthesis' approach and a second stage could apply utilitarian considerations based on public policy. Malcolm CJ added (at 473; 7):

'... Public policy considerations which apply to co-operation with the authorities extend also to a plea of guilty in appropriate circumstances. I consider, however, that a need for a qualification arises where a finding of genuine remorse has also been made. This is a subjective circumstance. It should be taken into account at the first stage.' "

16 Spigelman CJ then pointed out (at 129) that in subsequent decisions the Court of Criminal Appeal had in Western Australia referred to Verschuren as neither requiring a two-stage approach to be adopted, nor holding that it would be an error to fail to adopt such an approach. His Honour added (at 130):

The preponderant, but not unanimous, view in the Australian authorities is that it is always permissible and sometimes desirable for a trial judge to quantify the discount accorded for a plea of guilty. Some judges have indicated an opinion that it is usually desirable to do so. Different views are open as shown above.

In this respect there is no reason why the position in each State should be the same, particularly with respect to the utilitarian benefits of a plea. The relationship between the demands upon, and the resources available to, the criminal justice system will vary from one State to another. The practice of the criminal bar in advising on such matters will also differ. In this respect, variation of practice is not necessarily undesirable."

17 Counsel for the respondent submitted that the sentence imposed by the learned Magistrate was in all the circumstances within the sentencing discretion and was, in any event, a proper disposition of the matter. Reliance was placed upon observations of the courts that there are certain persons who by virtue of their position should expect the protection of the courts. These include police officers (Hill v Bodenham [2000] WASCA 37), licensees of hotels (Pearce v Bancroft, unreported; SCt of WA; Library No 7594; 12 April 1989) and operators of small businesses (Miles v The Queen (1997) 17 WAR 518 at 521). Taxi drivers are also in a special category by reason of legislative provisions.

18 There may be some distinction to be drawn between those who are given authority to control the conduct of others (such as police officers and operators of licensed premises) and those who are not (such as small business operators, school teachers and the like). However, the general submission that school teachers acting in the course of their duties should receive protection from the courts cannot be denied. To the extent that the learned Magistrate took into account the fact that the assault upon Mr Green occurred in the environment of a primary school where there was an expectation that he would have the protection of the law, there cannot be said to have been any error. Indeed, that conclusion must be correct. The acting deputy principal of a primary school is entitled to expect that when he calls upon the parents of children to collect those children from the school for health reasons, they will be collected in an orderly manner and without the accompaniment of physical attack upon him. The community also expects nothing less.

19 Counsel for the respondent submitted that the learned Magistrate took into account all relevant criteria in determining whether or not a sentence of imprisonment should be imposed and whether or not that sentence should be suspended. In my view this is a correct submission. The learned Magistrate clearly apprehended the import of the decision in Dinsdale v The Queen and approached the matter correctly. He appreciated that factors other than mere rehabilitation were important factors to consider, pointing out that circumstances personal to the offender and the objective features of his conduct were relevant to the exercise of the discretion in that regard.

20 In my view the decision of the learned Magistrate was well within the exercise of the discretion which he had. The principles according to which an appellate court may interfere with such a discretion are well established. They were restated in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15] in the following terms:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judgment merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

21 In my view the decision of the learned Magistrate was not only within discretionary limits, but was undoubtedly correct. The offence committed by the appellant was particularly serious, given that it was an unprovoked assault upon the deputy principal of a primary school; involved two separate attacks upon the victim; occasioned a significant physical injury to him; and left him with residual problems. Notwithstanding the fact that the appellant had no prior convictions for violence, and was able to produce a number of character references attesting to his good character, the nature and seriousness of the offence committed was, in my view, such that only imprisonment could be justified. The Magistrate's decision not to suspend that sentence cannot, in my view, be attacked.

Johnson v Hayter [2001] WASCA 118

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Johnson v Hayter [2001] WASCA 118 (17 April 2001)

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