Court of Appeal (WA)|2004-02-04|Before: Malcolm CJ

Long v Mayger [2004] WASCA 41 (4 February 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LONG -v- MAYGER [2004] WASCA 41

MATTER : Justices Act 1902

Courts and judges - Apprehension of bias - Application to Magistrate to disqualify himself - Factual matters put to Magistrate - Facts wrong - Application withdrawn - Subsequent application based on Magistrate's reaction to earlier application - Criminal law - Unlawful wounding - Sentence - Whether term of imprisonment should have been suspended

Sentence of 11 months' imprisonment suspended for 2 years

Adams v The Queen [2003] WASCA 91

Etrelezis v The Queen [2001] WASCA 327

Evans v Vanderheide [2001] WASCA 352

Janerka v Bethell [2002] WASCA 198

Messaoui v The Queen, unreported; CCA SCt of WA; Library No 92101; 4 December 1991

Miller v The Queen [2001] WASCA 426

R v Barbis & Rouse [2003] WASCA 107

Shooter v The Queen (1997) 97 A Crim R 581

1 MALCOLM CJ: I agree with the reasons to be published by McKechnie J for the orders made at the conclusion of the hearing on 4 February 2004. Those orders were to allow the appeal and to vary the sentence imposed by suspending the sentence imposed by the learned Magistrate for a period of 2 years from 4 February 2004.

2 STEYTLER J: I have had the advantage of reading the judgment to be delivered by McKechnie J. It is consequently unnecessary for me to restate, at any length, the facts and circumstances giving rise to this appeal against sentence.

3 On the evening of Friday, 13 September 2002 the appellant was involved in a brawl at the Grand Boulevard Tavern in Joondalup. The complainant, Sasha Mauchien, was standing on the dance floor of the tavern talking to a small group of women. He was bumped from behind, causing him to hit the drink held by one of the women, which splashed into her face. This led to a fight between the complainant and the man who had bumped him, Tom Ferrier. Notwithstanding that others had attempted to separate the two combatants, the appellant intervened on Ferrier's behalf and, from a position behind and slightly to one side of the complainant, struck the complainant on the side of his face and back of his head with a single blow from a beer bottle. The force of the blow was sufficient to smash the bottle. The complainant sustained cuts to his face requiring 40 stitches in all.

4 The appellant was charged with unlawful wounding. On 18 March 2003, after a trial lasting two days, he was convicted on that charge by a Magistrate.

5 The Magistrate thereupon heard submissions as regards the sentence which should be imposed. The then counsel for the appellant urged the Magistrate, if he was considering imposing a custodial sentence, to suspend that sentence. He also suggested that a pre-sentence report be obtained. The Magistrate said, in that respect, the following:

"So outrageous was this offence that I feel the over-riding obligation of this court is to impose a penalty which provides a general deterrent to all of society and I think that necessity for a general deterrence is above the circumstances personal to ... [the appellant]. I am of the opinion that this matter should be dealt with by way of a prison sentence. I'll accept Mr Baker's proposition that a pre-sentence report be obtained, so the matter will be adjourned to the 11.4.03 for a pre-sentence report into

the Central Law Court on that day, but as I indicated, there's very little doubt in my mind that the end result is going to be a prison sentence. In fact, there's no doubt.

The pre-sentence report is just for the sake of determining whether ... [the appellant] is suitable for parole, but I'm of the opinion that ... [he] ought to be remanded in custody as of today."

6 The hearing was then adjourned until 11 April 2003.

7 In affidavits sworn in support of the application for leave to appeal, the appellant's then solicitor, Mr Baker, and the appellant's mother, Linda Long, have said that, at the time at which the Magistrate gave his reasons for convicting the appellant, he appeared to be very agitated, to the point at which his hands appeared to be shaking as he held the notes from which he read.

8 The appellant appealed against his conviction, but was unsuccessful in doing so: Long v Mayger [2003] WASCA 223. However, that appeal delayed matters and the sentencing proceedings did not resume until 28 October 2003.

9 In the interim, on 27 March 2003 the appellant, by counsel, applied to the Magistrate to disqualify himself on the ground of apprehended bias. As McKechnie J has said, the matters leading up to that application were quite extraordinary. Mr Baker had by then learned that on the night of 24 December 2002 the Magistrate's nephew had been assaulted near the tavern at Hillarys Boat Harbour and had subsequently died as a consequence of the injuries sustained by him. Mr Baker told Mrs Long of this. She was concerned that the Magistrate's attitude might have been influenced by the tragedy which had befallen his nephew. She was also concerned that some unidentified man who had been in the rear of the Court during the proceedings may have been the father of the Magistrate's deceased nephew. Instead of simply instructing Mr Baker to ask the Magistrate whether this was so, Mrs Long, presumably on the basis of legal advice, hired a private investigator. The investigator confirmed that the Magistrate's nephew had been killed in the incident on 24 December 2002. He also obtained a photograph of the victim's father, Mr Leon Robinson. Mr Baker concluded that the unidentified man who had been in the back of the Court bore a strong resemblance to the photograph of Mr Robinson.

10 On 26 March 2003 Mr Robinson contacted Mr Baker's office and complained of the fact that the inquiry agent had been instructed to inquire as to his relationship to the Magistrate.

11 When the application to have the Magistrate disqualify himself upon the ground of apprehended bias came on for hearing on 27 March 2003, counsel for the appellant said that the apprehension arose out of a combination of circumstances encompassing the fact that the Magistrate's nephew had not long previously been killed in circumstances similar to those giving rise to the appellant's offence, the fact that the Magistrate's wife had been involved in making the funeral arrangements and the fact that Mr Robinson had been present throughout the trial. The Magistrate told counsel for the appellant, in no uncertain terms, that his instructions with respect to the involvement of the Magistrate's wife in the funeral and with respect to the presence in Court of his brother-in-law, Mr Robinson, were incorrect. Not surprisingly, he also expressed outrage at the fact that a private investigator had been employed to investigate the family relationships. He pointed out that Mr Baker "could have saved his money" and telephoned him. The application was thereupon withdrawn.

12 The unsuccessful appeal against conviction thereafter intervened. Then, on 27 October 2003, the day before the sentencing hearing was to be resumed, the appellant, by counsel, once again made an application to the Magistrate asking him to disqualify himself on the grounds of apprehended bias.

13 On this occasion the apprehension was said to arise as a consequence of the Magistrate's anger on the previous occasion which, it was submitted, raised a concern that he would be unable to deal, in an objective way, with the sentencing proceedings. Indeed, counsel for the appellant submitted that the Magistrate's ongoing outrage at what had occurred (the Magistrate repeated his outrage during the course of this application) reinforced the need for the application. The Magistrate said that his outrage was directed at the "legal parties involved" and not at the appellant himself. He dismissed the application.

14 When the sentencing proceedings resumed on the following day, further evidence in mitigation was led before the Magistrate from the appellant himself as well as by way of the pre-sentence report and various character references. The Magistrate was urged, once again, to impose a suspended sentence of imprisonment.

15 After a brief adjournment the Magistrate returned to give his decision. In the course of doing so he described the background to, and the seriousness of, the offence and referred to the further evidence which had been placed before him, including the pre-sentence report. He said that the attack "by its very nature demands a prison sentence", more particularly when regard is had to the need for general deterrence. He said that, having heard what had been said by counsel for the appellant, he had given consideration to the question whether a sentence of suspended imprisonment should be imposed but went on to say:

"As I indicated before, society demands that such behaviour by the defendant ought to be dealt with by an immediate prison sentence."

16 He then imposed a sentence of 11 months' imprisonment (the appellant had by then been in prison for 1 month) and declared the appellant to be eligible for parole.

17 There are four grounds of appeal (the appellant having been given leave to appeal on 6 November 2003). The first asserts that the Magistrate erred in law in refusing to disqualify himself upon the grounds that there was a reasonable apprehension that he might not bring an impartial mind to the determination of the matter before him. The second contends that he misapprehended the evidence relied on for the purpose of sentencing. The third is to the effect that the Magistrate erred insofar as the sentence of 11 months' imprisonment with eligibility for parole was excessive in all of the circumstances and beyond a sound discretionary judgment. The fourth is to the effect that the Magistrate erred in determining that a sentence of immediate imprisonment was appropriate without first obtaining and giving consideration to all relevant information relating to the appellant's personal background and antecedents.

18 It is necessary for me to deal only with the last of those grounds.

19 It seems to me to be quite plain from what was said by the Magistrate that he had, by 18 March 2003, formed the opinion that, because of the seriousness of the offence, an immediate prison sentence was required regardless of the personal circumstances of the appellant, and that he did not thereafter depart from that opinion. He said, on 18 March 2003, that there was "no doubt" that the result would be a prison sentence. He also then said that he would examine the pre-sentence report only for the sake of determining whether or not to declare the applicant eligible for parole. While he said, on 28 October 2003, that he had considered the question of a suspended sentence, he went on to say, as I have mentioned, that, as he had previously indicated, society demanded that "such behaviour" by the defendant ought to be dealt with by an immediate prison sentence.

20 In my respectful opinion, his Worship was in error in forming that opinion. The offence was serious, but the question whether or not a suspended sentence of imprisonment should be imposed was one which required a consideration of all of the relevant circumstances.

21 Section 39(2) of the Sentencing Act 1995 provides for a number of sentencing options, ranging from release without sentence under s 46 of the Act (s 39(2)(a)) to the ultimate option of the imposition of a term of imprisonment (s 39(2)(h)). A suspended sentence of imprisonment is provided for, as the penultimate option, by s 39(2)(f) (subs 39(2)(g) has been deleted by amendment). Section 39(3) of the Act then provides that:

"(3) A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option."

22 The effect of this is, of course, that a court may not impose a term of immediate imprisonment unless it is satisfied that it is not appropriate to impose a sentence of suspended imprisonment.

23 Section 39 of the Act is to be read in conjunction with s 6(4) thereof, which provides that 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 that the protection of the community requires it. It must also be read in conjunction with s 76 of the Act, subs (1), (2) and (3) whereof read as follows:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

(3) Suspended imprisonment is not to be imposed if -

(a) the offence was committed when the offender was subject to an early release order; or

(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended.

24 As was pointed out by Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 348, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act require, suggest that the same considerations that are relevant in considering whether or not a term of imprisonment should be imposed must be revisited in determining whether or not to suspend that term. Kirby J went on to say (pages 348 - 349):

"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' (R v Davey (1982) A Crim R 254 at 262) which, subject to the statute, 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 (cf R v Wacyk [1996] SASC 5622; (1996) 66 SASR 530 at 534; Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 at 169."

25 The decision whether or not to suspend a sentence will ordinarily depend upon a range of factors and, as Perry J (with whom Millhouse J was in agreement) observed in R v Wacyk [1996] SASC 5622; (1996) 66 SASR 530 at 536, the exercise of the discretion "one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender". His Honour also said (ibid) that:

"... [N]otwithstanding indications given from time to time ... that certain offences ordinarily call for an immediate custodial term, there must always be room for the odd exception. Strictures that a given offence or class of offences will ordinarily deserve an immediate custodial term are nothing more than an indication that the need for general deterrence attaching to them will commonly outweigh idiosyncratic features attaching to the case, including considerations personal to the offender."

26 Amongst the factors which should be considered in deciding whether or not to suspend a sentence are the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of a suspended sentence (R v Percy [1975] Tas SR 62 at 72 - 73; R v GP (1997) 18 WAR 196 at 233 - 234); the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby [1984] Tas R 54 (at 62 - 67); R v Kirk (1984) 6 Cr App Rep (S) 231; GP at 220, 234 and 243); whether there is any element of persistence (see Wood v Samuels at 468 and Kruger at 221); general deterrence (Causby, above, at 62); factors personal to the offender, including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; (1993) 61 SASR 589 at 592; cf Percy at 72 - 73); the need to demonstrate the condemnation of the community for offences of that kind (Causby at 62; GP at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212 - 213; R v P at 285; GP at 234).

27 The personal mitigating circumstances of the offender which must be considered (at both stages of the sentencing process) include such circumstances as the fact that the offender has no prior convictions: see, for example, R v Gillan [1991] FCA 184; (1991) 100 ALR 66 at 71 (although the existence of prior convictions, even convictions which have carried sentences of imprisonment, is not necessarily a bar to the imposition of a suspended sentence: see Hauff v SA Police (1994) 63 SASR 286 and Walker v SA Police (1993) 61 SASR 159 at 162); youth (for example, Hauff at 293); advanced age (Wacyk at 536 - 537); illness (Hauff, at 293); the fact of steady continuing employment (Gillan, at 71) or good prospects of education or employment (Hauff, at 294) and the fact of the provision of "genuine information to the authorities about the workings of organised crime" (Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 239, per Deane and McHugh JJ). As to this last consideration, the fact of the provision of information of this kind might expose the informer to the danger of retributive violence, which danger can be aggravated within a prison environment (Malvaso, ibid).

28 These, and other, circumstances are mentioned by Fox and Freiberg in their very helpful text on sentencing ("Sentencing: State and Federal Law in Victoria", 2nd ed, at 683 - 684). The authors also observe (page 684) that the need for general deterrence points away from suspension but should be balanced by the opportunity that suspension can provide for rehabilitation. To similar effect is the judgment of Debelle J in R v Brazier (1994) 75 A Crim R 404 at 408, where his Honour said that general deterrence was not the only relevant factor and that "due regard must also be had to the question of whether the proper rehabilitation of the defendant requires that the sentence be suspended and whether, in all the circumstances, it is appropriate to send a first offender to prison when that person might be a person likely to benefit from an exercise of the court's clemency". Also, in Renshaw v Director of Public Prosecutions (Cth) (1996) 67 SASR 139, Doyle CJ said, at 142, that rehabilitation, if effective, is "as much in the public interest as deterrence by punishment". Moreover, in Hauff, at 294, Lander J took into account the "salutary lesson" which must have been given to the appellant as a consequence of the fact that he had spent six weeks in a gaol before being sentenced.

29 The aforegoing does not purport to provide an exhaustive list of the factors which must be considered as there can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels, above, at 468) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case (see Dinsdale, above, at 348 - 349).

30 In this case, as I have stressed, the Magistrate considered only the seriousness of the offence. In my respectful opinion, he should not have done so. While the offence was undoubtedly serious, and while the objective features of an offence may, in a particular case, outweigh other considerations, all of the relevant factors were required to be considered in weighing up the option of a suspended sentence. The offence in this case, serious as it was, appeared to be wholly out of character for the appellant and, as McKechnie J has mentioned, carried consequences beyond what had been intended by him. Also, the appellant was very young (he was only 18 years old), his antecedents were favourable and his prospects of rehabilitation were excellent. McKechnie J has also mentioned that the appellant had built on his favourable antecedents by

actively pursuing community service and had undertaken a course of training which gave him good employment prospects.

31 It follows that, in my respectful opinion, the Magistrate's approach reflects error in effectively excluding consideration of any of these circumstances in deciding upon the appropriate disposition. On that ground alone, I joined in the order allowing the appeal and setting aside the sentence imposed by the Magistrate. That conclusion made it unnecessary for me to reach any final opinion in respect of the other grounds of appeal.

32 As to the sentence which should be imposed in lieu of that set by his Worship, I reached the conclusion, essentially for the reasons expressed by McKechnie J in that regard, that an appropriate sentence was one of 11 months' imprisonment suspended for a period of 2 years. I should add, in that respect, that a suspended sentence is not "merely an exercise in leniency" (see R v Davey [1980] FCA 134; (1980) 50 FLR 57 at 67, per Muirhead J; Gillan at 71 and GP at 243; and see also Dinsdale at [79]). Rather, it is a "substantial punishment" (R v Whitnall [1993] FCA 271; (1993) 42 FCR 512 at 518, per Higgins J, and Paterson v Stevens (1992) 57 SASR 213 at 217) and it should not be overlooked that an offender may be required to serve the whole of it if, during the suspension period, he or she commits an offence, in Western Australia or elsewhere, the statutory penalty for which is or includes imprisonment: s 77 and s 80 of the Sentencing Act and see Hall v The Queen (1999) 21 WAR 364 at 375.

33 MCKECHNIE J: At the conclusion of the hearing of the appeal on 4 February 2004 the Court unanimously allowed the appeal and varied the orders made by the learned Magistrate to the extent of suspending the sentence of imprisonment of 11 months for a period of 2 years. The Court said it would deliver its reasons at a later date. These are my reasons for joining in that decision. As will become clear, I uphold only one ground of appeal and would dismiss grounds alleging apprehension of bias and prejudgment on the part of the Magistrate.

34 On the 18 March 2003 the applicant, then aged 18 years, was convicted after trial of a charge of unlawful wounding. An appeal against the conviction was dismissed: Long v Mayger [2003] WASCA 223.

35 It was conceded at the trial that the appellant had struck the complainant, Mauchien, over the head with a bottle. The issue was one of causation as to how Mauchien came by his wounds. After conviction the

Magistrate, Mr P M Heaney, heard detailed submissions on sentence from Mr Baker, counsel for the appellant and also from the prosecutor. Mr Baker submitted that if a sentence of imprisonment was imposed, it should be suspended. The Magistrate expressed the view:

"So outrageous was this offence that I feel the overriding obligation of this court is to impose a penalty which provides a general deterrent to all of society and I think that necessity for a general deterrence is above the circumstances personal to Mr Long. I'm of opinion that this matter should be dealt with by way of a prison sentence..."

36 He did not express any other opinion about suspension of sentence.

37 The Magistrate accepted the proposition that a pre-sentence report should be obtained although only for the purpose of determining whether the appellant was suitable for parole. He said:

"...there is very little doubt in my mind that the end result is going to be a prison sentence."

38 The appellant was remanded to 11 April 2003 for sentencing. In the event, because of the appeal against conviction, he was not sentenced until 28 October 2003. After hearing further submissions by Mr Birmingham QC, on behalf of the appellant, the Magistrate sentenced the appellant to a period of 11 months' imprisonment (taking into account time spent in custody) and made a parole eligibility order. He specifically declined to suspend the sentence, stating:

"Having heard Mr Birmingham's address this morning I gave consideration to the fact that I should consider suspending that sentence and I have considered it but I don't think it's appropriate. As I indicated before society demands that such behaviour by the defendant ought to be dealt with by an immediate prison sentence."

39 On 6 November 2003 the appellant was granted leave to appeal to the Full Court against the sentence on grounds which alleged bias and prejudgment on the part of the Magistrate, errors of fact, and error in imposing a sentence which was excessive in all the circumstances and beyond a sound discretionary judgment. The grounds are supported by full particulars.

40 The test in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to decide: Johnson v Johnson [2000] 8 HCA 48; 201 CLR 488 at [11]. Two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judicial officer whose training, tradition and oath or affirmation, require the judicial officer to discard the irrelevant, the immaterial and the prejudicial: [12].

41 Fundamental to the common law system of adversial trial is that it is conducted by an independent and impartial tribunal: Ebner v Official Trustee in Bankruptcy (2000) HCA 63; 205 CLR 337 at [3]. In Ebner the Judges forming the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said [8]:

"The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

42 Judicial officers are not mindless automatons. They have emotions and may, on occasions, be affected by them. It can be normally assumed that an experienced judicial officer will recognise when judgment may be being swayed by emotion and take steps to avoid injustice by postponing proceedings or even standing aside. Whether a judicial officer, bound by an oath of office should step aside because of a perception of bias is a matter principally entrusted to the judicial officer concerned. The test, however, is to be measured objectively by reference to a fair-minded observer in possession of the facts. With this in mind I turn to the detail of the grounds of appeal and the particulars.

The facts giving rise to the grounds of appeal

43 I have sketched what occurred on 18 March 2003. The trial took place over two days. Mr Baker swore an affidavit in support of this application in November 2003. In par 4 he deposed to a number of matters, only one of which has any evidential significance, the others being reflected more accurately in the transcript or are an inadmissible expression of opinion:

"4. At the time that the learned Magistrate convicted the Applicant and remanded him in custody for sentence on 18th March 2003, the learned Magistrate, ...

4.1 appeared to be visibly upset and agitated, his hands shaking at the time as he gave his reasons for decision and made his preliminary remarks on sentence;"

44 The appellant's mother, Linda Long, also has sworn an affidavit. She deposed that she was present during the trial:

"5. It was my first experience of being in a Court and I keenly observed the proceedings. I say that during the course of the Trial proper, the Magistrate appeared to me to be very professional, judicious and thorough. I was however surprised that during the course of the Trial, that the Magistrate himself asked questions of the Complainant Mr Mauchien regarding the possible cause of his injuries.

6. I recall that prior to arriving at his decision, there was a short adjournment of the proceedings. I assumed that during this period, the Magistrate had viewed his notes of the evidence that he appeared to be making during the Trial.

7. When the Magistrate returned and was seated in his chair, he purported to weigh up the evidence of the various witnesses and then gave his decision. He said that he found the offence proven and recorded a conviction against my son for the offence of Unlawful Wounding.

8. I say that during the course of providing his reasons for decision, the Magistrate appeared to be very agitated, his hands appeared to be shaking as he held his notes that he had in front of him.

9. Further, after he heard the prosecutor's sentencing submissions, which were to the effect 'that young people should be able to go out and enjoy themselves without suffering severe injuries', he became emotional. He was red in the face, his hands were shaking and his demeanour was one of displaying strong emotions. In my opinion, he also raised his voice. He also stated that he would not consider my son's personal circumstances and would only consider a pre-sentence report to see if my son was eligible for parole.

10. His manner and emotional display shocked us."

45 To the extent that these passages, and others, in Mrs Long's affidavit contain expressions of her opinion it seems to me they are inadmissible although no challenge is made to them. The most that can be gained from these paragraphs of any relevance is that during the course of providing reasons the Magistrate's hands were shaking and that perhaps he appeared to be agitated.

46 Although the Magistrate expressed himself as to the sentence quite unequivocally on the 18 March 2003, nevertheless he did not sentence on that day and it was open for him to review his decision when he obtained a pre-sentence report. It is not unknown for judicial officers to change their minds.

47 I am not inclined to accord much weight to the description of the Magistrate's emotional state. Accepting that he was agitated, as described, it does not follow that the cause of his observable state was extraneous to the facts of the case before him, a case where a young man had sustained serious facial injuries involving initially some 40 stitches and subsequently plastic surgery to remedy the disfiguration.

48 Certainly I do not consider the evidence indicates any reasonable apprehension of bias on 18 March 2003, especially when there is no complaint about the conduct of the trial.

49 It appears that Mr Baker immediately considered the prospects of an appeal and for that purpose met with counsel at Bar Chambers to obtain advice. During the course of that meeting he was told that the Magistrate's nephew, Mr Leon Robinson, had been assaulted and tragically died as a result of injuries sustained by him during an incident near the tavern at Hillarys Boat Harbour on the night of the 24 December 2002.

50 Mr Baker told Mrs Long. Upon being informed of the events of 24 December, Mrs Long expressed her concerns that the Magistrate's attitude may have been influenced by the tragic death of his nephew in similar circumstances to those involving the appellant approximately 11 weeks earlier, namely, an altercation in or near licensed premises at night involving young persons. It appears that about this time Mrs Long also advised Mr Baker that there was a person who was in the rear of the Court seemingly unrelated to the parties or witnesses.

51 What then occurred is extraordinary. No-one, it seems, thought to ask the Magistrate about the events of 24 December. Instead, a private investigator was engaged so that the appellant and his parents could "assure ourselves of the emotional objectivity of the Magistrate". (Mrs Long). The private investigator, Mr Bradley, discovered that Mr Leon Robinson was indeed the Magistrate's nephew and a photograph, believed to be the father of Mr Robinson, bore, in Mr Baker's opinion, a strong resemblance to a person present in Court throughout the trial.

52 On 26 March 2003 the late Leon Robinson's father contacted Mr Baker's office and angrily complained that an inquiry agent had been instructed to enquire as to his relationship to the Magistrate and asked that the agent not contact him again. Such a reaction is unsurprising in the circumstances.

53 It is important to record that there is no evidence that Mr Robinson was ever in Court during the appellant's trial. Upon the Magistrate stating so on 27 March 2003 the application based on this ground was abandoned. However, I cannot leave these events without recording my strong deprecation at all concerned, noting that it does not appear that the appellant, who was in custody awaiting sentence, played any, or any significant, part in them. An investigator was engaged to pry into the private affairs of a grieving family in order that persons, who had no complaint about the conduct of the trial, should be able to satisfy themselves of the emotional objectivity of a judicial officer whose views as to the serious nature of the offence cannot be faulted.

54 On 27 March 2003 Mr Birmingham of Queen's Counsel, now instructed by the appellant, applied for the Magistrate to disqualify himself on the basis of apprehended bias. The Magistrate asked whether the application should not be made to the Supreme Court but counsel thought that, as a matter of principle, it should first come before the Magistrate. At the time of the application the Magistrate had of course convicted the appellant and in the normal course would proceed to sentence. Counsel put his submission for disqualification on the grounds of apprehended bias on two bases. He raised the death of Leon Robinson and said that he was instructed that the Magistrate's wife was involved in relation to the funeral. The Magistrate put counsel right by saying:

"Well, I don't know where you are getting your instructions from but they are very wrong."

"And can I tell you something else that I wasn't impressed with, Mr Baker, who represented Mr Long, got a private investigator to discover my relationship between Leon Robinson and myself. He wasted his money. It's never been a secret that Leon Robinson was my nephew... If you wanted to know whether I was related to Leon Robinson he could have saved his money and rung me up... Everyone in the legal profession knew that he was my nephew."

"During the trial of Mr Long over the two days Mr Robinson, the father of Leon Robinson, was present throughout the trial."

57 The Magistrate immediately denied this allegation and, as I have said, there is no evidence whatever to support it. Counsel nevertheless persisted with the allegation until the Magistrate said:

"This is unbelievable. This man is my brother-in-law. He's got fiery red hair. If he was sitting in that small court at Joondalup I would have seen him...

...

You're getting - this is outrageous, absolutely outrageous.

COUNSEL: Your Worship, on your assurance that he wasn't present, I do not persist with the application and I withdraw it.

HIS WORSHIP: I am absolutely incandescent with rage, that someone would make that suggestion, that Steve Robinson was in the court at the trial and that somehow I was prejudiced by that.

COUNSEL: Well, that's the matter that has been put to me and I have asked that it be verified and they have confirmed it with me this morning.

HIS WORSHIP: Well it's wrong. It's absolutely wrong...

...

And I invite you to go to the Supreme Court and appeal."

58 Following the dismissal of the appeal against conviction the matter was due to return to the Magistrate on 28 October 2003. However, the Magistrate heard an application by Mr Birmingham on 27 October 2003 that:

"... your Worship not proceed with the sentencing and that he be referred to another magistrate for sentence. The application is made on the basis of an apprehension of bias."

59 Having provoked the Magistrate to become "incandescent with rage" on 27 March 2003 by unfounded allegations of fact, the application for bias was then mounted on the basis of the Magistrate's response on that day. It is necessary to set out in detail what was said. After counsel outlined his submissions as to the relevant legal tests the transcript continues:

"MR BIRMINGHAM: ... Now it's against that background, your Worship, that we bring the application, and your Worship will no doubt recall that an inquiry was made back on the 27th of March in relation to your Worship's relationship to a young lad who was tragically killed, Leon Robinson, and the - - it was raised on the basis that there was - - it was believed that the father of Mr Robinson was present in your court. Your Worship indicated clearly that there was no basis for that, but, in so doing, made some observations about the way in which the inquiry had been conducted and, indeed, expressed that you were then incandescent with rage - -

HIS WORSHIP: Well, I was absolutely outraged that you would make an application for bias based on what were utter lies. That's why I was outraged, and I hope you've got more this time.

MR BIRMINGHAM: Your Worship, the grounds are that the - - the remarks and the expressions of anger first made by your Worship when sentencing or dealing with the aspect of sentence and remanding the applicant in - - the defendant in custody for a pre-sentence report for the purpose of determining whether or not an 18-year-old with an unblemished record would be eligible for parole, the genuinely held belief by the defendant that the person in the back of the court was related to your Worship, a belief held through - - the fact that friends of the defendant have mutual friends with Mr Robinson - - Leon Robinson - - there was - - it wasn't frivolous in the way in which it was done. It was at the time of the trial and, indeed, a close relationship both in proximity and time and circumstance between the events giving rise to the tragic death of Leon Robinson, and the matter that was then being determined by your Worship.

In my respectful submission it was appropriate for the defendant's solicitors to undertake inquiries as to that matter, and having been instructed to do so, instructed persons to make those inquiries. Unfortunately, there was a ham-fisted inquiry conducted by a private inquiry agent that contacted the Robinson family and quite understandably caused some great offence, and I can well appreciate that your Worship was greatly angered by that.

HIS WORSHIP: Well, see, it went further than that because the other lie was that my wife was responsible for the organisation of the funeral - -

MR BIRMINGHAM: Well, that - -

HIS WORSHIP: - - which was a blatant lie that a fundamental investigation would have found was wrong.

MR BIRMINGHAM: If it please your Worship. A lie involves knowing something that is untrue, making - - holding a belief on the basis what they have been - - sought an inquiry agent to find out doesn't mean they're lying. It means that they have misapprehended the position based on information they've got which is incorrect.

HIS WORSHIP: What concerned me, also, was at the end of this trial, before the sentencing process had even begun, Mr Baker hired a private investigator, if you like, to find dirt on me why I should disqualify myself, and all he did was come up with two falsehoods.

MR BIRMINGHAM: Your Worship, I - - the inquiry that was instigated by Mr Baker wasn't, with respect, to find dirt on yourself, and, indeed, my - -

HIS WORSHIP: It was to find sufficient reasons why I was biased and should disqualify myself. Now, for a judicial officer, that is dirt."

"I'm outraged at the legal parties involved, Mr Baker and yourself; not Mr Long."

...

I made my position quite clear in respect of the sentencing of Mr Long at the completion of the trial - -

...

and that was before any of this came to light. So the fact that I am now faced with a sentencing exercise has got nothing to do with what has happened subsequently."

61 Counsel then pointed out that the application was not on the basis of actual bias but apprehended bias. Counsel acknowledged that the Magistrate was justifiably upset by the actions of the inquiry agent and the Magistrate acknowledged:

"As I said, not upset at Mr Long, upset at the - - Mr Baker and who instructed you with lies."

62 The Magistrate noted that his invitation to take the matter to the Supreme Court had not been taken up and said:

"I'm not biased and if you're - - if Mr Long's family thinks that I am biased, well, that's not a good enough reason for me to disqualify myself."

63 The hearing closed with counsel indicating that he had a number of references and material which he would ask the Magistrate to consider and that he would seek to address him on material and the pre-sentence report.

64 The Magistrate's anger was, he said, directed at persons other than Mr Long whom he carefully differentiated. I have some unease at some of the Magistrate's responses to counsel. He was understandably angry on 27 March 2003 but the passage of 6 months could be expected to cool the anger. His responses suggest a degree of anger was not far from the surface. On the other hand he was careful to differentiate between the appellant and those he regarded as responsible for the events which occurred.

65 On the day set for sentence, Mr Birmingham was able to make detailed submissions about the facts, the circumstances of the offence, and the matters personal to the appellant. I will return to those matters in detail later.

66 The appellant himself gave evidence before the Magistrate on sentence. Counsel summarised:

"...What we have is a young man who has completed his education, been involved actively in his school and social life and the community life in a very responsible manner. He has strong personal character references and strong guarantees of the characteristics that underpin the behaviour of a responsible member of the community. One who has on a night, committed an act that has clearly had widespread consequences. Prior to that there is an unblemished record and exemplary conduct. The pre-sentence report highlights this aspect that the behaviour was an aberration and highly unlikely to ever be repeated."

67 The prosecutor responded following which the Magistrate had a short adjournment "to absorb what you've said, Mr Birmingham". Upon resumption the Magistrate outlined the facts noting that Mr Mauchien, the complainant, required 40 stitches to the wound on his face, and that "photographs reveal that the wounds significantly disfigured his face requiring plastic surgery which we are told has somewhat remedied the damage that was done".

"It was clearly a premeditated vicious attack on Mr Mauchien who at the time was defenceless. Mr Long's explanation to Mr Crane that he didn't know that he had the bottle in his hand is an obvious lie. The video confirms that Mr Long was fully aware of the bottle in his hand and a clear intention to do what he did ...

A photo taken which reveals the extent of the wound, it starts midway up his forehead comes down past his eyebrows, across the bridge of his nose, down the length of his nose and then diverts for a short distance across his cheek."

69 The Magistrate noted the pre-sentence report and the references produced on the appellant's behalf:

"...all speak very highly of him and his family. I appreciate that Mr Long is still only a young man of 19 years of age. I appreciate that Mr Long has no previous criminal convictions. I have read all the references given to me, I have heard Mr Birmingham's submissions here today and I readily accept all the good things that have been said about Mr Long."

70 The Magistrate noted that the appellant had recently completed his anaesthetist technician's course and is now at the very start of his career and that the attack was out of character and occurred while his judgment was badly affected by alcohol. He concluded:

"This attack by on Mr Mauchien by Mr Long by its very nature demands a prison sentence. This is an offence that has potential as it did in this case to seriously disfigure the face of the victim.

A punishment needs to be imposed that not only deters Mr Long from offending in a similar manner but also provides general deterrent [sic] to society in general."

71 The Magistrate rejected a fine or a community based sentence as an insufficient penalty before imposing a sentence of 12 months' imprisonment, subsequently reduced by 1 month to take account of the time spent in custody.

72 The Magistrate adverted to the issue of suspension of sentence but said:

"... I don't think it's appropriate. As I indicated before society demands that such behaviour by the defendant ought to be dealt with by an immediate prison sentence."

Conclusion on the issue of apprehended bias

73 It has been necessary to undertake this detailed analysis to determine first whether to a fair-minded observer a reasonable apprehension of bias against the appellant might arise and secondly, if so, when it might have arisen.

74 Putting all the details together the following summary emerges:

• A nephew of the Magistrate was assaulted outside a tavern and died from his injuries three months before the trial. The Magistrate and his wife attended the funeral.

• The Magistrate presided over the trial and no complaint is made about any apprehension of bias in his conduct of that trial.

• When delivering his reasons for convicting the appellant on 18 March 2003 and during submissions on sentence the Magistrate appeared to be agitated and his hands were shaking.

• On 18 March 2003 the Magistrate concluded that the appellant should be sentenced to an immediate term of imprisonment. A pre-sentence report was to be obtained only to help determine whether there should be a parole eligibility order.

• A private investigator was hired to enquire into the Magistrate's relationship with his late nephew and the deceased's father.

• The deceased's father became very upset and communicated this to the Magistrate.

• The first reason advanced on 27 March 2003 was that the Magistrate was greatly affected by the death and that that was apparent from the funeral arrangements with which the Magistrate's wife was involved. The Magistrate's wife was not so involved.

• The second reason was that Mr Robinson was present throughout the trial. This was wrong.

• The Magistrate invited counsel to apply to the Supreme Court. No application was made.

• During that hearing the Magistrate expressed himself as absolutely incandescent with rage that someone would make the suggestion that his brother-in-law was at the trial and that he [the Magistrate] was prejudiced.

• The application for disqualification on 27 March 2003 was withdrawn.

• A new application was made on 27 October 2003 using as a basis the Magistrate's reactions on 18 March and 27 March 2003. The Magistrate described the application as based on utter lies and dirt pointing out that he was outraged at the legal parties not the applicant.

• On 28 October 2003 the Magistrate heard lengthy submissions before sentencing the appellant.

75 In my opinion, no fair-minded observer would reasonably reach a conclusion of apprehended bias. The interpretation of the Magistrate's bodily actions by an interested person on 18 March 2003 is not sufficient to raise an apprehension of prejudice. The Magistrate had presided over the trial without blemish, moved straight into the sentencing phase, and at the conclusion of submissions from both parties, expressed the very firm view that a sentence of imprisonment to be served immediately was the only option. I will discuss below why I think that was a miscarriage of discretion. However, for present purposes, the fact that the Magistrate had reached that conclusion does not of itself raise any apprehension of bias.

76 There was no doubt in the Magistrate's mind as to an immediate sentence of imprisonment. The fact that he continued to follow that course does not of itself raise any apprehension of bias.

77 On 27 March 2003 no reasonable observer could apprehend bias on the basis of material which was factually incorrect and in the event the application was withdrawn. I leave entirely to one side the interesting question whether, even if the material had been correct, it would have led to an apprehension of bias. The Magistrate described himself as absolutely incandescent with rage. Had he then proceeded to sentence the appellant, the question of an apprehension of bias would have become at least a live question. However, he did not. Instead he adjourned the proceedings because of the appeal against his decision on conviction.

78 Some 6 months passed before he came to review the matter - time enough for anger to cool. It is clear from the exchanges on 27 October 2003 that his anger had not entirely cooled. However, on several occasions he said his anger was directed at the legal advisers not at the appellant. There is no reason to reject this explanation in the circumstances. The Magistrate's reaction on 27 March 2003 was due to the actions on behalf of the appellant. A court will be slow to find apprehension of bias in a judicial officer when the apprehension is directly brought about by the conduct on behalf of one of the parties.

79 I am not persuaded that the Magistrate erred in law in refusing to disqualify himself from sentencing the appellant on the basis that statements made by him on 18 May and/or 27 March and/or 27 October 2003 gave rise to a reasonable apprehension that he might not bring an impartial mind to the determination of the matter before him. In consequence I do not uphold appeal ground 1.

80 Ground 1.1.2 asserts that statements made by the learned Magistrate on the 18 March 2003 and 27 October 2003 gave rise to a reasonable apprehension that the learned Magistrate had prejudged the matter.

81 There is nothing in this ground. On 18 March 2003 the Magistrate judged the matter by determining that an immediate sentence of imprisonment was appropriate. He did so after presiding over the trial and hearing submissions from both sides as to penalty. This is judgment, not prejudgment.

The failure to consider suspension of sentence was an error

82 I now turn to the one ground which I considered should succeed.

83 This was a grave offence. The use of a bottle or glass object in a fight carries a real risk of serious injury such as occurred in this case. For that reason a sentence of imprisonment will generally be appropriate and the Magistrate's decision to impose a sentence of imprisonment, notwithstanding the youth and prior good character of the appellant, cannot, in my respectful opinion, be faulted.

84 However, particularly in view of those latter matters, the Magistrate was required to consider carefully the question whether the sentence should be suspended. This is a separate consideration: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. It does not appear that on 18 March 2003 the Magistrate did undertake such an exercise. Counsel had specifically raised the suspension of sentence as a possibility. The Magistrate was required to give serious consideration to the submission and in the circumstances could not have determined the question of suspension without the benefit of a pre-sentence report.

85 Counsel for the respondent points out that the material available to the Magistrate on 28 October 2003 was in substance the same as the material available to him on 18 March 2003. There is considerable force in this submission. Had the Magistrate conducted any analysis of the matters which might bear upon the suspension of the sentence on 18 March 2003, I might have been inclined to the view that a decision not to suspend was open. However, he did not conduct such an analysis and in the circumstances the only conclusion is that he failed to exercise all aspects of the sentencing discretion on 18 March 2003. On 28 October 2003 his sole explanation for failing to suspend the sentence was as follows:

"Having heard Mr Birmingham's address this morning I gave consideration to the fact that I should consider suspending that sentence and I have considered it but I don't think it's appropriate. As I indicated before society demands that such behaviour by the defendant ought to be dealt with by an immediate prison sentence."

86 While this does indicate some consideration of the question, in the circumstances I do not think it amounts to an adequate consideration where, having regard to the appellant's youth and antecedents, the question of suspension of sentence was very much alive.

On re-sentencing the sentence should be suspended

87 If the Magistrate's discretion miscarried, both parties agreed it would be appropriate for this Court to re-sentence the appellant.

88 For the reasons I have previously expressed, a sentence of imprisonment was not only open but inevitable. Apart from the particular circumstances of this offence, the principle of general deterrence requires that courts deal firmly with young men who use glass objects as weapons. Having regard to the circumstances in which the offence was committed and the harm done to the victim, I do not regard an effective sentence of 12 months' imprisonment as beyond the range of a sound sentencing discretion.

89 The question then arises whether, in all the circumstances, that sentence should be served immediately or suspended. The seriousness of the offence is one issue to be taken into account. However, it must be measured against the circumstances of the appellant. The appellant was 18 at the time of the offence and of prior good character. Not only had he refrained from committing criminal offences, but he had actively pursued community service. As at 18 March 2003 he had nearly completed a course of training which by 28 October 2003 he had completed. He had good employment prospects. The offence itself, although deliberate, carried consequences well beyond what was intended. He appeared to have learned the consequences of drunken behaviour.

90 The circumstances called for the actual sentence of 11 months (1 month having been deducted for time served in custody) to be suspended for a period of 2 years and this was the order of the Court.

Long v Mayger [2004] WASCA 41

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Judgment (149 paragraphs)

Long v Mayger [2004] WASCA 41 (4 February 2004)

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Cases Cited (20)