KELLY -v- MANSER [2020] WASC 138 (30 April 2020)

(a) The total sentence is disproportionate to the appellant's overall criminality and is crushing in its effect.

(b) The magistrate considered the GBH charge and the damage charges as separate sentencing exercises and failed to look at or place sufficient weight on the similarity of the charges and the total offending behaviour comprising the GBH charge ... and the two counts of criminal damages as one course of conduct pursuant to the 'one transaction rule'.

1. In written submissions filed in the appeal, the respondent accepted that the total effective sentence of 12 months' immediate imprisonment for the criminal damage offences was disproportionate to the overall offending such that the sentence was unreasonable or plainly unjust. Despite the seriousness of Mr Kelly's offending, in my opinion, the concession by the respondent was properly made.

1. The statements of material facts for the three offences alleged:

During the morning of 11 September 2018 the accused received some information that caused him to form the opinion that the victim had caused harm to his partner a few days prior.

At 9.30 am on the same date the accused attended [at an address in East Carnarvon] to attempt to locate the victim. The accused was in a highly agitated state and intended to confront and engage in a physical altercation with the victim. At that location the accused met with the daughter of the victim ... and spoke with her. The accused solicited [the witness] for information as to the whereabouts of her father. The accused made comments to [the witness] and other occupants including 'I am going to slit your Dad's throat' and 'I don't give a fuck if this is your grandkid's house, I'll burn it down with them inside' ...

... the accused travelled in company with two others to the victim's residence ... The accused and one co-accused (not yet charged) exited the vehicle they travelled in and armed themselves with metal bars. The accused and co-accused proceeded to impact the victim's vehicle parked on the front lawn with the bars causing it extensive damage and causing its security alarm to sound. That alarm caused the victim and [a witness] to come outside the address.

[The witness] exited and approached the co-accused, verbally demanding her to stop damaging the vehicle. The accused walked behind [the witness] and approached the victim who was walking out of the front door. The accused armed himself with a paving brick and propelled the brick at the victim's head impacting it above the left eyebrow. The paving brick fell to the ground and the victim fell to his knees as a result of the impact. The accused and co-accused left the location and got back into the vehicle before driving from the area.

1. The victim of the assault with the paving brick suffered numerous facial fractures and required emergency surgery to prevent permanent loss of function of his left eye.
2. In the separate statement of facts for the first damage offence, it was further alleged that Mr Kelly took possession of several paving bricks from within the front yard of the residence and threw them at the vehicle, causing extensive damage to all the glass windows and several body panels.
3. The statement for the second damage offence alleged:

... the accused attended [at another address in South Carnarvon]... Parked at the front of the address at that time was the [second victim's motor vehicle].

The accused engaged in a verbal altercation with an occupant at the address and became angry. He picked up a lump of rock from the ground and threw it at the victim's vehicle impacting and smashing the rear windscreen. The accused collected the rock and threw it at the rear right window also causing that window to smash ...

1. The estimated cost of repairing the first vehicle was $8,000; the estimated cost of repairing the second was $1,000.
2. It was not disputed that Mr Kelly genuinely believed, as a result of what he had been told, that the victim of the grievous bodily harm and first damage offence had sexually assaulted Mr Kelly's partner.

1. On 24 March 2020, Mr Kelly pleaded guilty in the District Court to the charge that he unlawfully did grievous bodily harm. At the time of sentencing, he had spent approximately 14 1/2 months in custody and the sentencing judge was advised that any sentence could be backdated to 11 January 2019.
2. Mr Kelly was sentenced on 25 March 2020. The sentencing judge was satisfied that the only appropriate disposition was a term of imprisonment. Under s 87 of the Sentencing Act 1995 (WA), having decided that the time in custody should be taken into account, his Honour could reduce the term imposed by an appropriate period or order that it be taken to have begun on some earlier day. His Honour allowed for the time that Mr Kelly had spent in custody, and for his plea of guilty, by reducing the term imposed and determined that a sentence of imprisonment for one year was the appropriate disposition. At the time of sentencing, the sentencing judge referred to Mr Kelly having spent 18 months in custody. He had, however, earlier referred to the time in custody as approximately 14 or 15 months on several occasions.[1] It is more likely that the reference to 18 months was a slip, and his Honour knew and took into account the correct period spent on remand.
3. The sentence of imprisonment for 12 months was suspended for a period of 15 months, with the sentencing judge stating that the time in custody had been taken into account and would not be taken into account again should Mr Kelly reoffend.

1. Mr Kelly pleaded guilty to both charges on 12 September 2018.
2. On 27 March 2020, the magistrate imposed sentences of 6 months' imprisonment, to be served cumulatively and immediately, on each charge of unlawful damage. He did not specify a date for the commencement of the sentence ‑ by s 6(1) of the Sentence Administration Act 2003 (WA), the terms commenced on the day they were imposed.

1. The first ground of appeal, and the submissions in support, rely on both limbs of the totality principle.
2. The totality principle is a common law sentencing principle, acknowledged by s 6(3)(b) of the Sentencing Act, that generally applies when an offender is sentenced for more than one offence. In summary:

(1) The principal comprises two limbs. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that a court should not impose a sentence which would destroy any reasonable expectation of a useful life after release.

(2) The effect of the totality principle is to require a sentencing judge or magistrate who has passed a series of sentences, each properly calculated in relation to the offence and each properly made consecutive in accordance with principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'.

(3) Allowing for totality may be done by reducing the length of individual sentences for some offences, or by a mixture of cumulative and concurrent sentences.

(4) The totality principle is applicable in cases where an offender is sentenced by different judicial officers on different occasions. The application of the totality principle may be particularly difficult in those circumstances.

1. The appellant's argument based on the second limb of the totality principle is misconceived. It relies on the misapprehension, stated in the appellant's written submissions, that the severity of the term of imprisonment would be magnified by the knowledge that when it was completed there would be a 15 month period of suspended imprisonment to serve. The offences for which the magistrate sentenced Mr Kelly were not committed during the period of the suspension. The effect of s 77(2) and (3) of the Sentencing Act is that the suspension period began on the day the sentence was imposed in the District Court, and continues to elapse while Mr Kelly serves any sentence of imprisonment imposed by the magistrate.
2. Further, the sentencing court could not predict whether Mr Kelly would ever be liable to serve the 12 months imposed in the District Court, or part of it. Should he become liable to be sentenced again for an offence committed during the suspension period, any period of imprisonment served under the sentence imposed by the magistrate would be part of the circumstances to be taken into account in determining whether it would be unjust to require Mr Kelly to serve the 12 month sentence, or in imposing another sentence.
3. The appellant also contends that the total effective sentence he received infringed the first limb of the totality principle.
4. The application of the principle on appeal in this case is further complicated by the nature of the sentence imposed in the District Court.
5. There is a threshold question: what is the total sentence? It is unhelpful to attempt to convert the sentences imposed, and the time spent in custody, into an equivalent period of imprisonment, either with or without parole. The combined effect of the sentences, if not disturbed, is this:

(1) Mr Kelly spent about 14 1/2 months in custody awaiting sentence.

(2) He would serve between 6 and 12 months in custody on the sentence imposed by the magistrate, depending on whether he was released on parole.

(3) The 15 month period of suspension of his sentence in the District Court runs from when it was pronounced, and continues to elapse notwithstanding the later term of imprisonment.[2]

(4) Should Mr Kelly be convicted of an offence committed during the suspension period, the statutory penalty for which includes imprisonment, he will become liable to be sentenced again for the grievous bodily harm charge.

(5) Under s 80(3) of the Sentencing Act, he must be ordered to serve the 12 month sentence that was suspended unless it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

1. The magistrate was required to sentence in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. The sentence imposed must be commensurate with the seriousness of the offence.[3] The court determines the seriousness of the offence taking into account the statutory penalty; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.[4]
2. By s 6(4) of the Sentencing Act, a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified; or the protection of the community requires it. In making an order that the term of imprisonment be served immediately, a court must be satisfied that it is not appropriate to use any lesser sentencing option.

1. The offences for which Mr Kelly was sentenced were serious. He was motivated by revenge. It was pointed out on both sentencing occasions that the person he attacked was not responsible for the alleged wrong. But even if Mr Kelly had not been misinformed about who had assaulted his partner, the attack could not be justified or excused.
2. There were other aggravating factors. Mr Kelly acted in company with at least one other. He armed himself in the first incident with a metal bar, and then paving bricks. On the second occasion he used a rock to damage the vehicle. The whole incident was protracted ‑ before going to the house where the grievous bodily harm and the first offence of damage were committed, Mr Kelly went to another address and made threats to the victim's daughter. The offences were committed at two different addresses.
3. There is little to be said in mitigation. Mr Kelly will be 30 in December this year, and was nearly 28 at the time of the offence. He cannot claim the benefit of youth. His record of offending begins when he was 17 years old. Mr Kelly has an extensive record as an adult, mostly by comparatively minor offending but also offending that was sufficiently serious that Mr Kelly has been previously sentenced to imprisonment. Mr Kelly has also previously been subject to court imposed orders, including supervision and program orders, and has generally failed to comply. His record reflects a longstanding problem with use of illicit drugs.
4. I am not satisfied that any error has been shown in finding that the seriousness of the offences or the protection of the community (or both) required a term of imprisonment.
5. The major mitigating factor is the early plea of guilty. Mr Kelly pleaded guilty the day after the offences. The magistrate allowed the maximum reduction of 25% under s 9AA of the Sentencing Act.
6. Although the two offences were separated in time and place (to an unspecified extent, but it appears that they were not far apart), the accumulation of two terms of six months does, in my opinion, disclose error. The second incident, although serious, was not as serious as the earlier one, both in the extent of the damage and the way in which it was inflicted. Mr Kelly was not alleged to have then been armed with the metal bars. It was not alleged that he acted in company on the second occasion.
7. Imposing six months for the second offence and making the terms wholly cumulative, having regard to the sentence imposed in the District Court, results in a total sentence which is disproportionate to the criminality across the three offences.

1. I would grant leave on ground 1, and set aside the sentences imposed on charges CA 965 and 966 of 2018. In lieu, I would sentence Mr Kelly as follows.
2. The sentence of imprisonment for 6 months imposed by the magistrate on the first offence, charge CA 965 of 2018, was within a sound exercise of the sentencing discretion and should not be disturbed. The second incident, however, was less serious. Although a cumulative sentence of imprisonment is appropriate, having regard to the principles of totality I would impose a sentence of imprisonment for 2 months on charge CA 966 of 2018, resulting in an effective sentence of 8 months for the two damage offences.
3. I do not need to determine whether immediate imprisonment was within the range of sentences reasonably open to the magistrate in the exercise of a sound discretionary judgment. On resentencing, I exercise the discretion afresh. There are three particular matters which lead me to conclude that suspension of imprisonment is appropriate: first, the peculiar circumstance that it was approximately 18 months between Mr Kelly pleading guilty and the sentencing; second, the nature of the sentence imposed in the District Court; and third, the period spent in custody. Although s 87(1) of the Sentencing Act may not apply for the purpose of reducing the term of imprisonment, the fact that Mr Kelly has now been in custody for approximately 15 1/2 months (including the time spent awaiting the appeal) is a relevant factor in deciding whether any term of imprisonment should be served immediately.
4. I will suspend the sentence of 8 months for a period of 10 months.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See sentencing ts 93, 94, 95, 103 and 105.

[2] See Sentencing Act s 77(2) and (3).

[3] Sentencing Act s 6(1).

[4] Sentencing Act s 6(2).