Citation : LANGDON -v- KELEMETE-LEOLI-MCLEAN [2010] WASC 82

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether consequence of grievous bodily harm can be taken into account

Criminal Appeals Act 2004 (WA), s 14(1), s 14(2), s 14(5), s 16(2), s 18, s 31(4)(a)

Criminal Code (WA), s 1(1), s 221(1), s 297(1), s 313(1), s 317, s 656

Sentencing Act 1995 (WA), s 6(1), s 6(2), s 7(1), s 7(3)

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

Holden v The State of Western Australia [2009] WASCA 50

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Langdon v Kelemete-Leoli-McLean [2010] WASC 82

Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396

Lovegrove v The Queen [1961] Tas SR 106

Powell v Tickner [2010] WASCA 224

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Harrison [1997] UKHL 5; (1909) 2 Cr App R 94

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Teremoana (1990) 54 SASR 30

Wiltshire v Mafi [2010] WASCA 111

Zimmerman v The State of Western Australia [2009] WASCA 211

2 BUSS JA: The appellant was convicted, after a trial before Magistrate DN Jones, of:

(a) unlawfully assaulting Dominic Feeney and thereby doing him bodily harm; and

(b) unlawfully assaulting Hossain Noori and thereby doing him bodily harm,

contrary to s 317(1)(b) of the Criminal Code (WA) (the Code).

3 The magistrate sentenced the appellant to 8 months' immediate imprisonment for the assault on Mr Feeney and 15 months' immediate imprisonment for the assault on Mr Noori. His Honour ordered that the terms of imprisonment be served concurrently. The total effective sentence was therefore 15 months' immediate imprisonment. A parole eligibility order was made.

4 The appellant appealed against the sentencing decision. He alleged that the sentences were manifestly excessive. He also alleged that the magistrate made an express error in taking into account the fact that Mr Noori suffered grievous bodily harm. McKechnie J heard and dismissed the appeal. See Langdon v Kelemete-Leoli-McLean [2010] WASC 82.

5 The appellant has appealed to this court, pursuant to s 16(2) of the Criminal Appeals Act 2004 (WA), against McKechnie J's decision.

6 I agree with Mazza J that the appeal should be dismissed, but I propose to state my own reasons for that conclusion.

The facts and circumstances of the offending

7 The facts and circumstances of the offending are set out in the reasons of Mazza J (with whom Pullin JA has agreed). I will not repeat them except to the extent necessary to explain these reasons.

The learned judge erred in law by concluding that the magistrate was right to take the consequences of the appellant's actions into account as an aggravating factor in sentencing, namely that the complainant [Mr Noori]

had suffered injuries that amounted in law to the offence of grievous bodily harm pursuant to section 297 of the Criminal Code of Western Australia, in circumstances where the appellant had only been charged with the lesser offence of assault occasioning bodily harm pursuant to section 317(1)(b) of the Criminal Code of Western Australia.

9 In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Gibbs CJ (Mason J agreeing) stated several propositions in relation to the sentencing of offenders. First, it was 'fundamental and important' that 'no one should be punished for an offence of which he has not been convicted' (389). Secondly, a sentencing judge is entitled, in imposing a sentence, to consider all of the offender's conduct, including that which would aggravate the offence, but 'cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence' (389). Thirdly, 'where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty' (392). See also R v Harrison [1997] UKHL 5; (1909) 2 Cr App R 94, 95 - 96 (Channell J); Lovegrove v The Queen [1961] Tas SR 106, 107 - 108 (Burbury CJ, Crawford & Cox JJ agreeing); R v Boney [1986] 1 Qd R 190, 207 - 210 (McPherson J); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

10 In the present case, the applicable common law principle is embodied generally within the first proposition and specifically within the third proposition from the reasons of Gibbs CJ in De Simoni, which I have set out at [9] above. The applicable principle, expressed specifically in terms relevant to this appeal, is that where the State has charged an offender with, and the offender has been found guilty of, an offence less serious than the facts warrant, the offender cannot be sentenced on the basis of the facts that would have rendered him or her liable to be charged with, and found guilty of, the more serious offence.

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.

Alternative offence: s 304, 313 or 317 or Road Traffic Act 1974 s 59.

The term 'grievous bodily harm' is defined in s 1(1) to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.

12 It is an element of the offence created by s 297(1) that the accused has done 'grievous bodily harm', as defined, to the complainant.

Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -

(a) if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years.

Alternative offence: s 313.

Summary conviction penalty:

(a) in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or

(b) in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24 000.

The term 'bodily harm' is defined in s 1(1) to mean 'any bodily injury which interferes with health or comfort'.

14 It is apparent from the definitions of 'grievous bodily harm' and 'bodily harm' that all 'grievous bodily harm' will be 'bodily harm', but not all 'bodily harm' will be 'grievous bodily harm'.

15 The maximum available penalty for the offence of unlawful assault occasioning bodily harm, contrary to s 317(1) of the Code, where the offence was not committed in circumstances of aggravation or in circumstances of racial aggravation, is imprisonment for 5 years. However, the maximum available summary conviction penalty, where the offence was not committed in circumstances of aggravation or in circumstances of racial aggravation, is imprisonment for 2 years and a fine of $24,000.

16 A magistrate may sentence an offender to a term which does not exceed the applicable jurisdictional limit even though any 'starting point' adopted in the course of deciding upon the term exceeds the applicable limit. See Wiltshire v Mafi [2010] WASCA 111 [24] - [33] (Pullin & Buss JJA & Mazza J).

17 In the present case, the offences of unlawful assault occasioning bodily harm committed by the appellant were not committed in circumstances of aggravation or in circumstances of racial aggravation. The applicable jurisdictional limit binding on the magistrate was therefore imprisonment for 2 years and a fine of $24,000.

Section 6 and s 7 of the Sentencing Act 1995 (WA)

18 By s 6(1) of the Sentencing Act 1995 (WA) (the Act), a sentence imposed on an offender must be commensurate with the seriousness of the offence.

19 Section 6(2) provides that the seriousness of an offence must be determined by taking into account:

(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.

20 Section 6(2) distinguishes between 'the circumstances of the commission of the offence, including the vulnerability of any victim of the offence' (s 6(2)(b)), 'any aggravating factors' (s 6(2)(c)) and 'any mitigating factors' (s 6(2)(d)). However, in my opinion, the distinctions between the circumstances of the commission of the offence on the one hand, and any aggravating factors or any mitigating factors on the other, are not rigid. For example, some of the circumstances of the commission of an offence may be aggravating factors.

21 By s 7 of the Act:

(1) Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.

(2) An offence is not aggravated by the fact that -

(a) the offender pleaded not guilty to it;

(b) the offender has a criminal record; or

(c) a previous sentence has not achieved the purpose for which it was imposed.

(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

22 Section 7 contains some limited degree of statutory guidance as to the matters which may, or must, or must not, be considered to be aggravating, but in general the identification of aggravating factors is to be made in accordance with the statutory provisions creating the relevant offence and the relevant common law principles. See Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [39] (Wheeler JA).

23 Section 6(1) and s 6(2) read with s 7(1) do not, in my opinion, evince a Parliamentary intention to abrogate, modify or exclude the common law principles enunciated by Gibbs CJ in De Simoni, which I have reproduced at [9] above.

24 In Zimmerman v The State of Western Australia [2009] WASCA 211, McLure P examined the legislative history relating to the enactment of s 7(3) [9] - [13]. It is unnecessary to reproduce her Honour's examination. It is sufficient to note these conclusions:

It is clear from the second reading speech that the legislative intent was that a proven (or uncontested) circumstance of aggravation could be taken into account in the exercise of the sentencing discretion but could not increase the statutory maximum penalty unless it was charged in the indictment.

...

It is apparent from the legislative history that it was not the legislature's intention to permit circumstances of aggravation to be taken into account as general sentencing considerations if they are not proven. The statutory purpose of s 656 [of the Code] and its replacement s 7(3)(b) [of the Act] was to permit those circumstances to be taken into account as general sentencing considerations, whether or not they are charged in the indictment, provided they are proven [10], [14].

25 The opening words of s 7(3), namely, '[i]f the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances', confine the operation of s 7(3) to the 'certain circumstances' that increase the statutory maximum penalty for the offence in question. But s 7(3) does not apply if the 'certain circumstances' are also an element of the offence charged. See Zimmerman [12] (McLure P).

26 In Zimmerman, Owen JA elaborated upon this point, as follows:

[T]here is a distinction to be drawn between offences where the statutory penalty can differ depending on whether or not the nominated 'circumstances of aggravation' are established and those in which nominated 'circumstances of aggravation' are elements of the offence. The phrase 'circumstances of aggravation' is to be understood differently depending on which of these two categories is under consideration. And the phrase 'aggravating factors' has a different meaning again. Section 7(3) uses the phrase 'aggravating factors' rather than 'circumstances of aggravation'. The opening words of s 7(3) are:

'If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ... '

That language is consistent only with 'circumstances of aggravation' as that term is used in the first category of offences. It must follow, therefore, that the section is directed at offences in the first category and not to those in the second category [29] - [30].

27 That is, s 7(3) is applicable to an offence where the statutory maximum penalty for the offence can differ depending on whether or not the nominated 'circumstances of aggravation' are established, but s 7(3) does not apply to an offence where the nominated 'circumstances of aggravation' are an element of the offence.

28 Where an offender has been charged with and found guilty of an offence less serious than the facts warrant, the offender cannot be sentenced on the basis that the facts that would have rendered him or her liable to be charged with and found guilty of the more serious offence are:

(a) 'aggravating factors' within s 7(1); or

(b) 'aggravating factors' within s 7(3)(b), unless the less serious offence and the more serious offence, read together, fall within the opening words of s 7(3).

w29 As I have mentioned, the offence of unlawful assault occasioning bodily harm, contrary to s 317(1), specifies a higher statutory maximum penalty where the offence is committed in 'circumstances of aggravation' or in 'circumstances of racial aggravation'. The expression 'circumstances of aggravation' is defined in s 221(1) of the Code, as follows:

[C]ircumstances of aggravation means circumstances in which -

(a) the offender is in a family and domestic relationship with the victim of the offence; or

(b) a child was present when the offence was committed; or

(c) the conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 or to which that Act applies; or

(d) the victim is of or over the age of 60 years.

The expression 'circumstances of racial aggravation' has the meaning given to it in s 80I of the Code.

30 In the present case, no 'circumstances of aggravation' or 'circumstances of racial aggravation' were charged, alleged or proven against the appellant. But in any event, neither Mr Noori's permanent loss of his sense of smell nor the appellant's criminal conduct which caused it was a 'circumstance of aggravation' (as defined in s 221(1) of the Code) or a 'circumstance of racial aggravation' (as defined in s 80I of the Code), for the purposes of the offence of unlawful assault occasioning bodily harm.

31 Further, the less serious offence of unlawful assault occasioning bodily harm and the more serious offence of unlawfully doing grievous bodily harm, read together, are not within the opening words of s 7(3). They are separate, distinct and relevantly unrelated offences.

32 Section 7(3) therefore did not apply to the appellant's sentencing in relation to the offence he committed against Mr Noori.

33 Nothing in s 6 or s 7 of the Act precluded the application in the present case of the common law principle which I have expressed specifically, in terms relevant to this appeal, at [10] above.

34 The appellant unlawfully inflicted bodily injuries on Mr Noori. They included an injury of such a nature as to cause permanent injury to his

health. This injury was the permanent loss of Mr Noori's sense of smell. It was an injury that constituted 'grievous bodily harm', as defined in s 1(1) of the Code.

35 The magistrate, in sentencing the appellant, took into account, as an aggravating factor of his offending against Mr Noori, the fact that Mr Noori had suffered the permanent loss of his sense of smell. This was a sentencing error.

36 The appellant was charged with an offence less serious than the facts warranted. He could have been, but was not, charged with unlawfully doing grievous bodily harm to Mr Noori, contrary to s 297(1) of the Code, instead of 'merely' unlawfully assaulting Mr Noori and thereby doing him bodily harm, contrary to s 317(1)(b). He was found guilty of the less serious offence.

37 In these circumstances, it was not open to the magistrate to sentence the appellant on the basis of any facts that would have rendered him liable to the more serious penalty which applies to the offence of unlawfully doing grievous bodily harm. His Honour was entitled to take into account that Mr Noori had suffered some impairment to his sense of smell. However, he was not entitled, pursuant to s 6(1) and s 6(2) read with s 7(1) or pursuant to s 7(3) of the Act, to take into account that Mr Noori had suffered a permanent loss of this sense.

38 In my opinion, McKechnie J erred, with respect, in deciding that the magistrate was authorised (in particular, by s 7(3)) to take into account, as an aggravating factor in the sentencing of the appellant, the consequence that, as a result of the appellant's actions, Mr Noori had suffered 'grievous bodily harm'. McKechnie J should have held that the magistrate had made a sentencing error and should have then given consideration to s 14(2) of the Criminal Appeals Act. By s 14(2), despite the magistrate's error, McKechnie J was empowered to dismiss the appellant's appeal if he considered that no substantial miscarriage of justice had occurred.

39 By s 14(2) of the Criminal Appeals Act, read with s 16 and s 18 of that Act, this court is empowered to dismiss the appellant's further appeal to this court if it considers that, despite McKechnie J's error, no substantial miscarriage of justice has occurred.

40 As I noted in Powell v Tickner [2010] WASCA 224, if, despite a magistrate's error (or, I would now add, a Supreme Court judge's error on appeal from a magistrate), a different sentence should not have been

imposed, then no substantial miscarriage of justice, within s 14(2), will have occurred [116].

41 I agree with Mazza J, for the reasons he gives, that the sentence of 15 months' immediate imprisonment imposed by the magistrate for the assault on Mr Noori was an appropriate sentence. A different sentence should not have been imposed.

42 It follows that, despite McKechnie J's error, the appellant's appeal to this court should be dismissed.

43 MAZZA J: On 10 August 2008, the appellant punched two men, Mr Feeney and Mr Noori, in the face. Mr Feeney suffered a broken nose and Mr Noori suffered a number of injuries, the most serious of which was the permanent loss of his sense of smell. The appellant was charged with two counts of assault occasioning bodily harm. He pleaded not guilty. The charges were tried summarily. After a trial in the Perth Magistrates Court on 20 and 21 October 2009, he was convicted as charged. On 23 November 2009, he was sentenced to 8 months' immediate imprisonment for the assault on Mr Feeney and 15 months' immediate imprisonment for the assault on Mr Noori. The magistrate ordered that the terms of imprisonment be served concurrently and made a parole eligibility order. The total effective sentence imposed upon the appellant was 15 months' immediate imprisonment.

44 The appellant appealed against those sentences. That appeal was heard and determined by McKechnie J on 27 April 2010. McKechnie J dismissed the appeal: Langdon v Kelemete-Leoli-McLean [2010] WASC 82.

45 The appellant appeals to this court against McKechnie J's judgment.

46 In the early hours of 10 August 2008, the appellant and a friend were in Northbridge. They spent about an hour at a nightclub where the appellant consumed four vodka drinks. He and his friend then left the nightclub to catch a taxi. While doing so they walked past another nightclub. There they encountered Mr Feeney and his girlfriend at the time, Ms Nichol. Mr Feeney, who was very intoxicated, swore at the appellant. The appellant took offence at this and punched Mr Feeney once to the face, breaking his nose.

47 Mr Noori had been drinking (mainly red wine) with friends at another nightclub. He left the nightclub by himself and was heading towards a taxi rank. He saw the altercation between the appellant and Mr Feeney. He went and spoke to the men. Video surveillance footage showed Mr Noori speaking to Mr Feeney and then turning to face the appellant's friend. At this point, the appellant threw a single punch at Mr Noori, striking him to the face. As a result of this blow, Mr Noori immediately fell to the paved footpath and was rendered unconscious. The appellant did not provide any assistance to either victim and walked away. Mr Noori was taken to hospital. There he noticed that he had lost his sense of smell.

48 The appellant, when interviewed at the time by the police, said he struck the two men due to 'alcohol and bad temper'.

49 The appellant gave evidence at trial. He did not deny striking both Mr Feeney and Mr Noori. However, he alleged that each blow was provoked by the allegedly abusive language of each victim.

50 There was no dispute at trial that Mr Feeney had suffered bodily harm as a result of his broken nose. The magistrate made a finding to this effect: blue AB 117. With respect to Mr Noori, there was no dispute that he had suffered a loss of consciousness and vomiting. Defence counsel conceded that this amounted to bodily harm.

51 During the trial the prosecution adduced, without objection from the defence, evidence from a consultant neurologist, Dr Ross Goodheart, who had examined Mr Noori on 23 June 2009. This evidence had been requested by Mr Noori's solicitors, who were contemplating pursuing a compensation claim on his behalf. Dr Goodheart had provided a report written on the same day as the consultation with Mr Noori, which was tendered in evidence (exhibit A). The effect of that report and his oral testimony was that Mr Noori had, as a result of the appellant's assault, suffered a permanent loss of his sense of smell and an altered sense of taste. Dr Goodheart explained that a blow to the head can cause movement of the brain inside the skull and that movement can, and did in the case of Mr Noori, shear the olfactory nerves at the cribriform plate. Dr Goodheart testified that those nerves, once sheared, will not regenerate. As a result, the loss of olfactory functioning in Mr Noori is permanent.

The magistrate's concerns about jurisdiction

52 After Dr Goodheart gave evidence, and just prior to the conclusion of proceedings on the first day of the trial, the magistrate raised with the police prosecutor, who had the carriage of the trial, a concern that he had arising out of Dr Goodheart's evidence. The magistrate noted that if he accepted Dr Goodheart's evidence that Mr Noori had suffered a permanent injury, namely the permanent loss of his sense of smell, that would amount to a finding of grievous bodily harm. The magistrate was concerned that as grievous bodily harm could only be dealt with in the District Court of Western Australia, he did not have jurisdiction to make a finding that Mr Noori had suffered a permanent injury amounting to grievous bodily harm.

53 The following day, the magistrate heard submissions from a DPP prosecutor, Mr Meertens, on the point. Mr Meertens explained that 'rightly or wrongly' the prosecution decided to prefer two charges of assault occasioning bodily harm, even though Mr Noori's deposition made in August 2008 revealed that he had lost his sense of smell. It appears that Dr Goodheart's report did not come to the attention of the prosecutor until the day before the commencement of the trial. Mr Meertens said that a decision had been made to continue with the charges of assault occasioning bodily harm after the contents of Dr Goodheart's report had become known because it would have been unfair to the appellant to charge him with grievous bodily harm some 14 months after the alleged assaults, and thereby subject him to a further delay, perhaps in the order of an additional 12 months, before he stood trial in the District Court on a charge of grievous bodily harm: blue AB 57 - 58.

54 During these submissions, Mr Meertens did not concede that in light of the prosecution's decision to proceed with a charge of assault occasioning bodily harm with respect to Mr Noori, the court should not take into account Dr Goodheart's evidence that the victim had suffered a permanent loss of his sense of smell.

55 Defence counsel, understandably, did not seek to persuade the magistrate that he did not have jurisdiction to deal with the case as a charge of assault occasioning bodily harm.

56 In the end, the magistrate decided that he had the jurisdiction to deal with the charge, and the trial proceeded: blue AB 66.

57 The magistrate found that on each count the appellant was not provoked. No challenge is made to this finding. He found that each victim suffered bodily harm. With respect to Mr Feeney, that was in the form of a broken nose. As to Mr Noori, the magistrate accepted Dr Goodheart's evidence and found that the bodily harm suffered by Mr Noori was:

[T]he loss of consciousness, the vomiting and the permanent loss of the sense of smell (blue AB 118).

58 The magistrate sought and obtained a written pre-sentence report. This report was favourable to the appellant. The appellant was, at the time he committed the offences, two months short of his 19th birthday. He was in full-time employment. The appellant's general pattern of alcohol use was not considered problematic, and the pre-sentence report author described the offences as 'an aberration and highly out of character'.

59 The prosecutor submitted that the only appropriate sentence was an immediate term of imprisonment, in light of the serious injuries suffered by Mr Noori and the need to provide general deterrence.

60 Defence counsel emphasised the matters raised in the pre-sentence report and submitted that non-custodial sentences should be imposed.

61 His Honour, in his sentencing remarks, acknowledged that imprisonment was the sentence of last resort.

62 He expressly acknowledged the positive pre-sentence report and the absence of any prior criminal history.

63 The magistrate said that if he only had to deal with the appellant for the offence committed on Mr Feeney, he would not have sentenced him to an immediate term of imprisonment. However, he considered the offence committed on Mr Noori to be so serious as to warrant only an immediate term of imprisonment.

64 The magistrate emphasised three matters which led him to conclude that immediate imprisonment was the only appropriate sentence for the offence committed on Mr Noori. They were:

1. The serious nature of the injury inflicted on Mr Noori, namely the permanent loss of his sense of smell and what the magistrate described as 'an indefinite effect on [Mr Noori's] sense of taste'.
2. The need for general deterrence in relation to what he described as 'wanton, gratuitous, random acts of violence, particularly in places like Northbridge'.
3. Having already punched Mr Feeney and having seen the consequences of hitting him, the appellant then repeated that behaviour by punching Mr Noori.

65 A reading of the sentencing remarks as a whole reveals that his Honour was particularly concerned about the serious consequences of the assault on Mr Noori. At the outset of his sentencing remarks, the magistrate said:

Mr Langdon, this assault on particularly Mr Norey [sic] is an extremely serious one. The court heard evidence and accepts that the consequence of your assault on him has resulted in a permanent loss of the sense of smell and an indefinite effect on his sense of taste (blue AB 123).

You are indeed fortunate, as you will recall the exchange which occurred earlier in the trial about whether or not this matter should have even been in this court, having regard to the nature of the injury that was caused to Mr Norey [sic] and that itself means that the maximum sentence which you may confront here is substantially lower than it would have been in the District Court (blue AB 124).

67 The magistrate's reasons for imposing an immediate term of imprisonment were expressed in this way:

[I]n relation to Mr Norey [sic] ... it does seem to me that the court has no alternative but to impose a term of imprisonment. The consequences of your action have been so serious that it calls, in my view, for an immediate term of imprisonment. I would be failing in my duty to impose any other sentence (blue AB 125).

68 After coming to that conclusion, the magistrate said:

The maximum sentence for an assault [occasioning] bodily harm - and this one is at the top of the range - is two years' imprisonment. Mr Langdon, I believe that I should, in terms of the disposition I impose here, take into account of course your prior good character, lack of any prior offending, and to some extent should regard this - although one ordinarily says there's a discount for a plea of guilty there is effectively an admission from the commencement of these proceedings that in fact you hit Mr Norey [sic] and Mr Finney [sic] (blue AB 125).

But the consequences for Mr Norey [sic], in my view, leave me with no alternative, and taking into account the positive factors in relation to you personally and effectively your admission that you did strike each of these men, the sentence I impose is one of 15 months' imprisonment in relation to Mr Norey [sic]. In relation to Mr Finney [sic] the sentence will be eight months, that sentence to be served concurrently with the sentence imposed in respect of Mr Norey [sic]. The total term there is 15 months with an order that you be eligible for parole (blue AB 125).

70 The magistrate's statement that the maximum sentence for assault occasioning bodily harm is 2 years' imprisonment is incorrect. Section 317 of the Criminal Code (WA) provides that the maximum penalty for the offence of assault occasioning bodily harm is 5 years' imprisonment. There is a summary conviction penalty of 2 years' imprisonment. However, this is a jurisdictional limit and not a maximum penalty. A magistrate may sentence an offender to a term which falls below the jurisdictional limit, notwithstanding that the starting point in calculating that term was in excess of that penalty: Wiltshire v Mafi [2010] WASCA 111 [24] - [32]. The error is not one of consequence in this appeal.

71 Four grounds of appeal were argued before McKechnie J. The first three grounds amounted to a complaint that the sentences were manifestly excessive in that the magistrate should have imposed suspended sentences upon the appellant. McKechnie J held that the sentences were not excessive and that the magistrate did not err by imposing immediate terms of imprisonment. These conclusions were not challenged in this appeal. The fourth ground of appeal before McKechnie J was expressed in these terms:

The Magistrate erred in law in taking into account that the complainant Noori had suffered grievous bodily harm.

72 McKechnie J rejected this ground. In doing so he relied upon s 7(3) of the Sentencing Act 1995 (WA): Langdon v Kelemete-Leoli-McLean [14] - [16]. His Honour concluded that the magistrate was right to take into account, as an aggravating feature of the appellant's offending in relation to Mr Noori, that the victim had suffered a permanent injury which amounted to grievous bodily harm.

73 There is one ground of appeal, which is in the following terms:

The learned Judge erred in law by concluding that the Magistrate was right to take the consequences of the appellant's actions into account as an aggravating factor in sentencing, namely that the complainant had suffered injuries that amounted in law to the offence of grievous bodily harm pursuant to section 297 of the Criminal Code of Western Australia in circumstances where the appellant had only been charged with the lesser offence of assault occasioning bodily harm pursuant to section 317 (1) (b) of the Criminal Code of Western Australia.

74 There is no ground of appeal directed to the sentence imposed with respect to the offence committed on Mr Feeney. The appeal before McKechnie J proceeded on the basis that if the sentence imposed in respect of the assault on Mr Noori succeeded, the sentence with respect to Mr Feeney would have to be adjusted (27/4/10, ts 8). This appeal was argued on the same basis.

75 Mr Levy SC, on behalf of the appellant, submitted that his Honour erred in his application of s 7(3) of the Sentencing Act to the present case. He submitted that as the prosecution had elected to charge the appellant with assault occasioning bodily harm, the magistrate was precluded from taking into account, as an aggravating factor in sentencing, the permanent loss of Mr Noori's sense of smell. To take this factor into account was to, in effect, sentence the appellant for the offence of grievous bodily harm, an offence for which he was not charged or convicted. Mr Levy submitted that the appellant should have been sentenced to a suspended term of imprisonment.

76 Ms Petrusa submitted that s 7(3) of the Sentencing Act had no application to the appellant's case and that McKechnie J fell into error in this regard. However, notwithstanding this error, Ms Petrusa submitted that the magistrate was right to have regard to the permanent injury suffered by Mr Noori as an aggravating factor in sentencing. Alternatively, if the permanent nature of Mr Noori's injury should not have been taken into account by the magistrate, and there was an error in this regard, the appeal should be dismissed because no different sentence should be imposed.

The statutory provisions relevant to this appeal

77 The Criminal Code provisions relating to offences against the person are contained in Pt V of the Criminal Code. The offences of grievous bodily harm, assault occasioning bodily harm and common assault are within this Part. For the purposes of Pt V, circumstances of aggravation are defined in s 221(1) of the Criminal Code as meaning:

(a) the offender is in a family and domestic relationship with the victim of the offence;

(b) a child was present when the offence was committed;

(c) the conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 or to which that Act applies; or

(d) the victim is of or over the age of 60 years.

78 None of these circumstances of aggravation were alleged in the charges brought against the appellant.

79 Section 297(1) of the Criminal Code contains the offence of grievous bodily harm, and provides:

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.

80 The term grievous bodily harm is defined in s 1(1) of the Criminal Code as being:

[A]ny bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health[.]

81 Section 317 of the Criminal Code contains the offence of assault occasioning bodily harm. That section provides that: '[a]ny person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable ... to imprisonment for 5 years ... [or, on summary conviction, to] imprisonment for 2 years and a fine of $24 000'. Bodily harm is defined in s 1(1) of the Criminal Code to mean 'any bodily injury which interferes with health or comfort'.

82 Section 313(1) contains the offence of common assault. Any person who unlawfully assaults another is guilty of a simple offence and is liable to imprisonment for 18 months and a fine of $18,000. Although an assault is not technically an element of the charge of grievous bodily harm (Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 217), it may be regarded, for practical purposes, as a type of assault charge being more serious than assault occasioning bodily harm, which is in turn more serious than a common assault. The difference between each of these offences is the degree of harm caused to the victim.

83 The magistrate accepted that Mr Noori had suffered permanent injury. That permanent injury constituted grievous bodily harm. However, the injury also constituted bodily harm. Of course, the appellant's action in punching Mr Noori to the face could have constituted a common assault.

84 The sentencing principles which must be applied are set out in Pt 2 Div 1 of the Sentencing Act 1995 (WA).

85 Section 6(1) of the Sentencing Act provides that the sentence must be commensurate with the seriousness of the offence. Section 6(2) states that the seriousness of the offence must be determined by taking into account:

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

86 Section 7 of the Sentencing Act deals with aggravating factors. Section 7(1) provides that an aggravating factor is a factor which, in the court's opinion, increases the culpability of the offender. In this case, the magistrate clearly considered the permanent nature of Mr Noori's injury as something which increased the appellant's culpability.

87 Section 7(3) of the Sentencing Act, which McKechnie J relied upon to support his decision that the magistrate was entitled to take into account the permanent nature of Mr Noori's injury, is in these terms:

(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

Was McKechnie J correct to rely upon s 7(3) of the Sentencing Act?

88 The statutory history and meaning of s 7(3) of the Sentencing Act was considered by McLure P in Zimmerman v The State of Western Australia [2009] WASCA 211 [7] - [15].

89 There is a difference between a circumstance of aggravation and an aggravating factor. For the purposes of this case, a circumstance of aggravation is a particular fact or circumstance prescribed by statute which, if proved, makes the offender liable to a higher maximum penalty than if he or she had committed the offence in the absence of that fact. An aggravating factor, while increasing the culpability of the offender, does not itself increase the maximum penalty for the offence. Section 221(1) of the Criminal Code is an example of facts or circumstances which are circumstances of aggravation.

90 The opening words of s 7(3), '[i]f the statutory penalty for an offence is greater ...', confine its operation to circumstances that increase the statutory maximum penalty, that is to statutory circumstances of aggravation.

91 Section 7(3) has no application to the present case. Obviously, the permanent nature of the injury inflicted upon the victim is not a circumstance of aggravation for the offence of assault occasioning bodily harm of the type referred to in s 221(1) of the Criminal Code.

92 With respect, McKechnie J erred by deciding that s 7(3) enabled the magistrate to take into account the permanent nature of Mr Noori's injury.

Was the magistrate nevertheless able to take into account the permanent nature of Mr Noori's injuries?

93 McKechnie J's error does not necessarily resolve this appeal in the appellant's favour. This is because the permanent nature of Mr Noori's injury may arguably have been taken into account by the magistrate as an aggravating factor pursuant to s 7(1) of the Sentencing Act.

94 In issue are two important general principles of sentencing, the first being that an offender cannot be sentenced for an offence of which he or she has not been charged and convicted. The second is that a sentencer is bound to take into account all the circumstances which are relevant to the commission of the charged offences: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26]; and Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 [4] - [5], [124]. Where these principles conflict, the latter principle must give way to the former. This is because it would be unfair and unjust to sentence an offender for an offence with which he or she has not been charged or convicted: R v Newman and Turnbull (1997) 1 VR 146, 150. Subject to s 7(3) of the Sentencing Act, I do not see anything in s 7 which excludes or modifies the operation of these principles.

95 Exactly where the line is drawn between a permissible consideration of the circumstances surrounding the commission of the offence and punishment for an offence which is not charged is not always easy to decide. In the end, it is a matter of degree to be decided on the facts of each case: R v Newman and Turnbull (152); and R v Teremoana (1990) 54 SASR 30, 37 - 38.

96 Earlier in these reasons I referred to the magistrate's sentencing remarks. The magistrate repeatedly referred to the serious nature of the injury sustained by Mr Noori. In doing so, the magistrate was not merely reciting the circumstances of the offending. He was giving emphasis to, and was taking account of, the permanent loss of Mr Noori's olfactory senses. He plainly regarded it as an aggravating factor. In my view, the magistrate sentenced the appellant on the basis that he had caused grievous bodily harm. This is one of those cases where the line, between the permissible consideration of the circumstances surrounding the commission of the offence and punishment for an offence for which the offender has not been charged and convicted, has been crossed.

Has a substantial miscarriage of justice occurred?

98 Section 18 of the Criminal Appeals Act 2004 (WA) (the Act) provides that Div 2 of that Act, with some modification, applies to an appeal from a single judge of the General Division of the Supreme Court to the Court of Appeal. Section 14 of the Act, which appears in Div 2, sets out this court's powers with respect to the present appeal. Those powers include the power to allow an appeal: s 14(1)(b); set aside a sentence imposed: s 14(1)(c); substitute a decision that should have been made by the court of summary jurisdiction: s 14(1)(d); or return the case to the court of summary jurisdiction: s 14(1)(e).

(2) Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

100 Section 14(2) of the Act is in different terms to s 31(4)(a) of the Act, which applies to appeals from superior courts under Pt 3 Div 3. I agree with Buss JA's statement in Powell v Tickner [2010] WASCA 224 [116], that if, despite error, a different sentence should not have been imposed, no substantial miscarriage of justice will have occurred within the meaning of s 14(2).

101 The assault on Mr Noori was a serious example of an assault occasioning bodily harm, even when the permanent injury he suffered is ignored.

102 The serious features of the appellant's conduct were:

1. Although Mr Noori may have sworn at the appellant (the magistrate made no finding on this point one way or the other), the appellant's reaction was grossly excessive and unjustified.
2. The appellant, having punched Mr Feeney severely enough to break his nose, should have realised the seriousness of his actions at that point and ceased what he was doing. Instead, he struck Mr Noori.
3. The punch which the appellant threw at Mr Noori was unexpected from Mr Noori's point of view and was administered with such force that he was immediately rendered unconscious. As a result, Mr Noori's head hit the footpath in an unprotected way, making him vulnerable to a severe head injury.

103 In oral argument, Mr Levy SC was asked whether any account at all could be taken of the impairment Mr Noori suffered to his olfactory senses. He conceded that the magistrate could have taken into account that Mr Noori suffered some impairment to his olfactory senses, but not to the extent of the injury being considered permanent: appeal ts 28 - 29. This concession was properly made. While there is plainly some artificiality to this approach, it at least affords some recognition to the injury which Mr Noori suffered.

104 Although the appellant's offending was caused in large measure by his self-intoxication, this circumstance affords no mitigation.

105 The magistrate was correct to accord substantial weight to general deterrence. The offences committed by the appellant were rightly described as 'wanton, gratuitous, random acts of violence' which occur all too frequently in places like Northbridge, and which expose victims to serious and sometimes catastrophic unforeseen consequences. This message applies as much to the young as it does to others.

106 The appellant's personal circumstances are, without doubt, favourable. Specific deterrence was not a factor in this case.

107 No matter has occurred between the appellant's conviction and the hearing of this appeal which would materially affect the sentences to be imposed on the appellant: s 14(5) of the Criminal Appeals Act.

108 In Holden v The State of Western Australia [2009] WASCA 50, Wheeler JA said:

Cases exist in which there is discussion of the range of sentences appropriate to assault occasioning bodily harm. They include Kilner v The Queen [1999] WASCA 189, Mourish v The State of Western Australia [2006] WASCA 257 and The State of Western Australia v Camilleri [2008] WASCA 217 ... Those cases demonstrate that it is difficult to discern a tariff because of the great variation in circumstances in such cases, but that in cases which have involved pleas of guilty, a post-transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].

109 It is a serious step to impose a term of immediate imprisonment upon a youthful first offender with prior good character. However, there will be cases where immediate imprisonment is the only appropriate outcome, having regard to all of the circumstances of the case, in order to reflect the seriousness of the offending and the need to provide general deterrence. In my opinion, this is one of those cases.

110 In my opinion, the sentence of 15 months' imprisonment which was originally imposed upon the appellant for the assault on Mr Noori is the appropriate sentence. I would not suspend the term of imprisonment, even after taking into account all of the relevant circumstances of the case, both for and against the appellant. In my view, the seriousness of the appellant's offending behaviour and the need to provide general deterrence are such that suspension is inappropriate.

111 In these circumstances, I do not consider that there has been any substantial miscarriage of justice. Accordingly, pursuant to s 14(2) of the Act, the appeal should be dismissed.

112 The practical effect upon the appellant is that the sentences imposed on him by the magistrate (including the sentence imposed for the offence on Mr Feeney) stand, as do the orders the magistrate made for concurrence and eligibility for parole.

113 This court was informed that, prior to the hearing of the appeal by McKechnie J, the appellant spent 4 weeks in custody: Langdon v Kelemete-Leoli-McLean [17]. He was also in custody between 27 April and 18 June 2010, before being released on bail pending this appeal. He has spent a total of 80 days in custody (appeal ts 18). This time in custody was not spent on remand, but is time spent serving the sentences imposed by the magistrate.