AB v The Queen [1999] HCA 46

Dickman v Turton & Anor [2000] WASCA 1

Esther Invesments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kilner v The Queen [1999] WASCA 189

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998

Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007

Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108

R v P [1992] FCA 626; (1992) 39 FCR 276

1 WALLWORK J: I agree with the reasons for judgment of Murray J. There is nothing I wish to add.

2 MURRAY J: On 2 February in the District Court at Kalgoorlie the applicant pleaded guilty to an offence of assault occasioning bodily harm. He was sentenced to a term of 18 months imprisonment with eligibility for parole. He now seeks leave to appeal against that sentence on amended grounds which contend that the Judge erred in the exercise of his discretion by not ordering that the sentence of imprisonment be suspended. He argues that his Honour erred in requiring exceptional circumstances to justify suspension.

3 The facts of the case may be briefly recounted. On 11 February 1999 both the complainant and the applicant were out and about in Kalgoorlie attending various hotels and nightclubs. It is perfectly apparent that both men became the worse for wear as a result of the alcohol they had consumed. There was some contact between them during the night. It was accepted that the applicant was observed from time to time behaving in an aggressive manner with various people.

4 Ultimately, in the early hours of the morning outside a nightclub, the complainant observed the applicant engaged in an altercation with a group of women. He intervened. There was some physical contact in which the applicant was the aggressor and the applicant struck the complainant a very heavy blow to the face, described by witnesses as a "king hit", which caused the complainant immediately to fall to the ground and in the result required his hospitalisation for the injuries he suffered. His mouth was cut open and required sutures, a number of teeth were broken or chipped, and his jaw was fractured. Short of amounting to grievous bodily harm, the injuries were undoubtedly serious bodily harm and were so described by his Honour.

5 The Judge commented on the applicant's history, including a violent childhood which his Honour said attracted sympathy, but did not in the end "make a great deal of difference so far as sentencing is concerned." The applicant was a 35 year old truck driver, recently separated from his wife and children, with a criminal history upon which his Honour commented. Much of it constituted traffic offences, as might perhaps be expected. The only previous conviction which was of any relevance really was a conviction for assault in 1989, which was not a serious matter.

6 It was put to his Honour, and I think accepted, that at the time of the commission of the offence the applicant was under stress as a result of the recent breakdown of his marriage. It was right to describe him, as counsel did, as a generally hardworking person with a long history of regular employment, generally law abiding, but with a drinking problem and a problem with what these days is described as "anger management". In other words, he tended to be aggressive when drunk. But it was said of him that since the commission of the offence he had sought help with his alcohol problem and of his own volition had substantially modified his drinking habits.

7 The plea of guilty he entered was made at the eleventh hour when the matter had been listed for trial. The lateness of the plea was said to have been caused by his lack of memory of the circumstances surrounding the commission of the offence, delay in his solicitor making contact with him as a result of his occupation, and a late change of counsel. The Judge obviously did not think they were convincing reasons, and although he allowed some credit for the plea, he described the case as one in which the applicant had shown no remorse at all for the commission of the offence. That conclusion seems to me, with respect, to have been well justified. If it was genuine that the applicant has no memory of the incident, that was the situation from the outset, and difficulty in contacting his solicitor and instructing counsel do not seem to me to explain the lateness of the plea when the offence occurred almost a year before the date upon which it was dealt with.

8 As I have mentioned, the Judge did in any event take the plea of guilty into account. In the circumstances he gave a very generous discount. He said he would have sentenced the applicant to 2 years imprisonment, but he only imposed a sentence of 18 months, expressly allowing the 25 per cent discount for the plea of guilty. His Honour commented on the seriousness of the offence and rightly so. He could find no mitigating circumstance other than the plea. He concluded that:

"In my view the seriousness of the injuries and the nature of the offence are such that the only appropriate penalty is a sentence of imprisonment to be served immediately. I do not accept that there are such exceptional circumstances that the unusual step of a suspended sentence is appropriate in your case."

9 I have mentioned that there is a complaint in the grounds of application that his Honour erred by apparently considering it necessary to find exceptional circumstances for suspension of sentence, a course which his Honour thought was unusual. In my opinion there is merit in this contention. The leading authorities on suspension of imprisonment in this jurisdiction are R v GP (1997) 18 WAR 196 and R v Liddington (1997) 18 WAR 394. There is nothing in those cases to support the broadly stated view expressed by his Honour. Indeed, in GP at 236 - 237 I discussed a previous authority, which had considered the use of suspended imprisonment in cases of serious sexual assault or sexual offences against children, and I concluded that there was no support "for the broad proposition that sexual offences committed against children would only attract a non-custodial disposition in very special circumstances."

10 In Liddington, while there may have been a difference in emphasis between various members of the court as to the matters which might support the use of suspended imprisonment and the circumstances in which that disposition might be considered to be appropriate, there was no disagreement between their Honours that suspended imprisonment is simply the second most severe sentence available to the court and is to be used in preference to the ultimate disposition of imprisonment to be immediately served when the circumstances make it appropriate to do so. That is, after all, merely consistent with the Sentencing Act 1995 (WA) s 6(4) and s 39(3) which effectively express the principle that a sentence of imprisonment to be immediately served is the sentence of last resort only to be employed when that is the only sentence which may be justified having regard to the seriousness of the offence and the requirement for the protection of the community.

11 However, the fact that the Judge made the error identified above does not mean, in my opinion, that the appeal should be allowed. Leave should not be granted and the appeal allowed unless in the result achieved by the sentencing court the exercise of discretion can be seen to have miscarried in such a way as to produce a miscarriage of justice. The amended grounds of appeal contend that that has occurred in this case and it is submitted that his Honour failed to give any or sufficient weight to the rehabilitative effect of a suspended sentence, the unlikelihood that the applicant will reoffend, the personal deterrence involved in a suspended sentence, the circumstances of the offence, the accused's personal circumstances at that time, his antecedents and the "self-help steps" taken by him.

12 I have referred to those steps as being to modify the applicant's drinking habits and I have discussed his antecedents and personal circumstances. I have described the nature of the offence and the circumstances of its commission. His Honour had regard to all those matters and took the view, as has been seen, that the offence was simply too serious to admit of a suspended sentence in this case. His Honour thought that the degree of violence involved and the severity of the consequences showed that this was an offence for which the only sentence that would sufficiently demonstrate the condemnation of the community of gratuitous violence of this kind in a public place, was one of imprisonment to be immediately served. Only such a sentence would adequately deter both the applicant and others in the community whose behaviour might involve the commission of such an offence.

13 In my respectful opinion his Honour's views in that regard involve no error. Indeed I think he was right. There was nothing to indicate any serious remorse or attempts at rehabilitation. Indeed, when his Honour imposed the sentence, he made the recommendation that before being released on parole the applicant should undertake courses of anger management and to combat his tendency to abuse alcohol. Nor did the antecedents of the applicant or the circumstances of the case provide any ground for the court to conclude that there was any special reason why it should be merciful.

14 There are some interesting parallels between this case and the case of R v Hodges [1999] WASCA 278; 8 December 1999. That was a Crown appeal against a community based order imposed for doing grievous bodily harm by a single "king hit". The grievous bodily harm was in fact a degree of permanent disability. Again, at the time of the commission of the offence, the respondent was gravely intoxicated.

15 The respondent was a young man who had displayed considerable remorse and had pleaded guilty at the earliest opportunity. He had taken effective steps to address his alcohol problem. He had no relevant criminal history. There was therefore much to be said on his behalf in mitigation of punishment.

16 Nonetheless the court considered that the seriousness of the offence required the Crown appeal to be allowed. It was thought that a sentence of 3 years imprisonment to be immediately served was the appropriate disposition but, because this was a Crown appeal, that term was reduced to one of 2 years. As in all such comparative exercises, there are, of course, points of dissimilarity as well as similarity, but in my opinion that case and this do demonstrate that in cases such as this, the court will be moved to punish severely such acts of gratuitous violence which cause substantial injury. I would refuse the application for leave to appeal.

17 SCOTT J: I have had the advantage of reading in draft the reasons of Murray J. I agree with his Honour's reasons and have nothing further to add.