MEDANOVIC -v- BARRETT [2016] WASC 237 (4 August 2016)

5 The facts admitted by the appellant at the time the sentence was imposed were as follows.

6 On the evening of Sunday, 26 April 2015 the appellant was with a group of friends at the Botanica Bar, Innaloo. The complainant's partner was standing at the bar with two female friends. A man from the appellant's group tried to involve himself in the conversation. The complainant approached his partner and spoke to her. The man from the appellant's group was told by the complainant to mind his own business. The man then struck the complainant with a clenched right fist. The complainant stumbled and was set upon by a number of other men from the appellant's group, including the appellant. The complainant went to the ground and appeared to lose consciousness. The appellant took hold of a wooden chair, lifted it over his head and brought it down with force on the complainant as he lay on the ground. The appellant kicked the complainant with his right foot as he lay on the ground. The appellant moved away as a crowd controller covered the complainant with his own body. The appellant later swapped his shirt with that of a male acquaintance. An ambulance was called and the complainant was taken to hospital for medical attention.

7 The appellant was described as being of a solid build and was 187 centimetres tall. The complainant was 26 years old, also of a solid build and 185 centimetres tall.

8 The appellant was represented by counsel at the sentencing hearing and the following submissions in mitigation were made on his behalf.

(i) The appellant was a second year apprentice electrician studying at Joondalup TAFE. His earnings were about $500 per week.

(ii) The appellant lived at home with his two older sisters and his parents. Although the appellant was born here, his family had emigrated from Bosnia 20 years ago.

(iii) The appellant was convicted of a traffic offence in 2014 but had no other convictions.

(iv) The appellant was of good character. Two character references were presented in support of this submission.

(v) The appellant pleaded guilty at an early stage. Initially the appellant was charged with assault causing bodily harm. The charge was reduced to common assault and the appellant pleaded to that charge on the day he was sentenced.

(vi) The appellant involved himself in the incident because he thought that his friends were being attacked and he tried to stop it.

(vii) The appellant was remorseful. The appellant's counsel described the appellant's friends as the 'wrong group of people' and said that the appellant did not mix with them anymore.

9 The appellant's counsel applied for a spent conviction order.

10 The Chief Magistrate's sentencing remarks were as follows:

I don't need to hear from the prosecution. Stand up please, Mr Medanovic. Mr Medanovic, this is a case where you were engaged at a licensed premises. A scuffle, for which you were not a party, apparently broke out. The victim in this matter went to the ground. You then became involved, not only kicking him but using a weapon, a chair, to smash over him. This is conduct that the community cannot tolerate. The only appropriate penalty for conduct of this type is a term of immediate imprisonment. There is no question of a spent conviction order or a penalty other than immediate imprisonment.

Although you have no prior record, the message has to go to the community that violence in a licensed premises by young men such as you can no longer be tolerated. Every week in the newspapers there are people who are suffering long-term injuries as a result of violence like this. It is a matter of mere luck, I would suggest, that this victim did not suffer serious injuries. You will be sentenced to eight months imprisonment, giving you credit for the maximum discount for your plea at the earliest opportunity. You need to stand down in custody.

11 The court must not grant leave to appeal unless it is satisfied that the ground has reasonable prospects of success: s 9(2) Criminal Appeals Act 2004 (WA). A ground must have a rational and logical prospect of succeeding, that is, a real prospect of success: Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

12 An appellate court may not substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised its discretion in a different manner. It must be shown by the appellant that the court at first instance failed to exercise its discretion properly by acting upon a wrong principle, mistaking the facts or allowing irrelevant matters to affect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671.

13 An allegation of manifest excess in a sentence is an assertion of implied error. The appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust. The orthodox approach in determining whether an individual sentence is manifestly excessive requires an examination of the maximum sentence applicable to the offence, the seriousness of the offence on the scale of seriousness of offences of that type, the standards of sentencing customarily imposed and the personal circumstances of the offender: Smith v State of Western Australia [2014] WASCA 238 [33].

14 The maximum penalty that can be imposed for a common assault is imprisonment for 18 months or a fine of $18,000: s 313(1)(b) Criminal Code 1913 (WA).

15 The Chief Magistrate stated that he gave the appellant the maximum discount for his plea at the earliest opportunity which would suggest that his Honour's starting point was somewhere in the region of 12 months' imprisonment.

16 The features of the offence that elevate its seriousness are as follows:

(i) There was no provocation. The appellant's explanation that he thought his friend was being attacked does not withstand scrutiny.

(ii) The appellant set upon the complainant with others.

(iii) The appellant's use of the chair as a weapon bringing it down with force from a position above his head onto the complainant who was on the ground.

(iv) The appellant kicked the complainant as he lay on the ground in a state of diminishing consciousness.

17 Senior Counsel for the appellant, Mr Yovich SC, accepted that this was a serious assault. The use of the chair as a weapon on a victim who was on the ground places it above the middle of the range on the scale of seriousness of offences of common assault.

18 The assault was not, however, a planned attack. It was completely spontaneous. In making an objective assessment of the seriousness of the offence it is relevant that no injury was sustained by the complainant, albeit that, as the Chief Magistrate observed, this may have simply been a matter of luck.

The standards of sentencing customarily imposed

19 There are only a small number of appellate cases in Western Australia in which the sentencing for common assault has been considered.

20 As was stated by Martin CJ in Harrison v Hunter [2012] WASC 166 [26], and recently restated by Beech J in Garlett v Balic [2016] WASC 172 [48], the cases do not reveal an established range of sentences customarily imposed for offences of common assault because of the enormous variety of circumstances in which the offence of common assault can be, and is, committed.

21 The cases do provide some reference points which assist in making an assessment of the sentence imposed on the appellant in this case. The parties cited cases involving common assault, common assault in circumstances of aggravation and assault occasioning bodily harm and I will consider the cases under those headings.

22 In Ugle v Wells [1999] WASCA 21 sentences of imprisonment of six months for common assaults imposed at first instance were upheld on appeal. The common assaults in that case involved the offenders beating a woman with a stick and a metal bar. The victim had intervened to protect another woman, whom the offenders had chased through a street, and then assaulted causing that woman bodily harm. The appellant and co-offender were sentenced to terms of imprisonment of six months in respect of the common assaults and terms of imprisonment of 18 months in respect of the assaults causing bodily harm. The reasons for decision do not disclose the ages or antecedents of the offenders. It is clear that the court regarded the offences, involving as they did an attack by two armed men on two defenceless women, as very serious.

23 In Esh v Cooper [2009] WASC 122, the appellant had behaved aggressively to the victim while they were in a hotel. The appellant and others followed the victim after he left the hotel. The appellant 'king hit' the victim causing him to fall to the ground. Other offenders punched and kicked the victim. On appeal a sentence of immediate imprisonment of 15 months was set aside and a sentence of 12 months immediate imprisonment was imposed. The appellant was 28 years of age at the time of the offence. He had an extensive history of convictions predominantly in respect of road traffic offences and had previously served a short term of imprisonment. Although the appellant was employed, he had significant unpaid fines.

24 In Evans v Richards [2015] WASC 53 the appellant was a police officer who had assaulted the complainant whilst the complainant was lying face-down on the ground with his hands cuffed behind his back. The assault involved the appellant putting his boot on the right side of the complainant's face and neck area and pushing the complainant's face into the ground with some force whilst questioning him. The appellant was fined $7,000. McKechnie J set aside the fine of $7,000 and in lieu, imposed a fine of $1,000.

25 In Garlett v Balic the offence took place in the Murray Street Mall in Perth. The appellant had been shouting and swearing at various people in the mall for a period of 15 minutes. The victim was sitting in the mall drinking tea with friends. The appellant abused the victim and her friends verbally and, suddenly, without warning, she charged at the victim from behind and with the full force of her body pushed the victim in the back of her head, causing the victim's head to slam into the pavement in front of her making a loud banging noise. The victim fell to the ground. When she got to her feet, she was dazed, shaking and in shock. The victim sustained a sore left temple, sore neck and nose and a swollen left eye for which she received medical treatment. The appellant was sentenced to a term of imprisonment of eight months. As at the sentencing date, the appellant had been in custody for 130 days. In the presentence report the appellant was described as a recidivist offender who had adult convictions for offences of theft, conduct disorder, drug use, traffic, serious assault, and breaches of bail, violence restraining, supervision and suspended imprisonment orders. Beech J set aside the sentence of imprisonment imposed by the Magistrate. In light of the time spent by the appellant in custody, the appellant was released with no sentence imposed.

26 In Morgan v Kazandis [2010] WASC 377 the offence of common assault was committed in the presence of children in circumstances of aggravation. The offender was a strongly built 42yearold man who assaulted a 15yearold girl in her own home in the early hours of the morning. The offender had a lengthy record for a variety of minor offences, many involving drinking, assault and violence. A sentence of imprisonment of nine months was upheld on appeal.

27 In Harrison v Hunter the appellant was sentenced to a term of 8 months' imprisonment for an offence of common assault committed in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code 1913 (WA). The circumstances of aggravation were that the victim of the assault was the appellant's de facto spouse who was holding their visually impaired infant daughter at the time she was hit by the appellant on the head with the bottom of his closed fist. The appellant, who was 26 years old at the time of the offence, had been drinking. The appellant had two prior convictions for assault causing bodily harm and one prior conviction for common assault. The appellant argued that the sentence of immediate imprisonment was manifestly excessive. Martin CJ upheld the appeal and imposed a sentence of imprisonment of 8 months suspended for 12 months on condition that the appellant comply with a supervision requirement.

28 In Wungundin v Barndon [2013] WASC 28 McKechnie J set aside a sentence of immediate imprisonment of 8 months for an aggravated assault. The appellant, then aged 38 years, was drunk. He was lying with his wife on a rug following an argument when he hit his wife with a closed fist in the ribs from the rear. The punch caused some pain but no lasting illeffect. The appellant had prior convictions for assaults on his wife. In his reasons for holding that the sentence of imprisonment was manifestly excessive McKechnie J emphasised that a sentence of imprisonment is a sentence of last resort and that that principle should not be diminished whatever the weight of general and specific deterrence. On the particular facts of that case, McKechnie J considered that the appropriate disposition would have been an intensive supervision order if a presentence report recommending it had been obtained but, as the appellant had served nearly 2 months in prison, imposed a nominal fine.

29 In Bropho v Hall [2015] WASC 50 Mitchell J set aside a sentence of immediate imprisonment of 15 months for an aggravated assault on the grounds that it was manifestly excessive and imposed an intensive supervision order. The appellant had been in custody for over 5 months when the appeal was heard. The assault involved the appellant grabbing the victim by her Tshirt and causing scratches to the side of her neck, punching the victim to the face, causing bruising and swelling to the victim's left eye, and then hitting the victim on the side of the head as she moved away from the appellant. The victim and appellant were in a domestic relationship and the assault took place in the presence of the victim's two children, who told the appellant to stop the assault. In the course of Mitchell J's reasons, his Honour accepted a concession made by the appellant that it was open to the magistrate to conclude that a term of immediate imprisonment was the appropriate kind of penalty in the circumstances of that case, at [20], although as his Honour went on to observe the offence of common assault will often be appropriately dealt with by way of a fine or some other noncustodial disposition in the Magistrates Court.

30 Holden v The State of Western Australia [2009] WASCA 50 involved an appeal against the imposition of a two year term of imprisonment for assault occasioning bodily harm. The appellant and a cooffender had assaulted the complainant. The appellant left the scene of the assault momentarily, only to return and resume the assault with a weapon. The complainant suffered serious internal injuries requiring surgery. The appellant was 34 years of age at the time of the offending and had a relatively minor record of prior offending. The sentence of imprisonment of 2 years was set aside and the appellant was resentenced to a term of imprisonment of 18 months. Wheeler JA noted that whilst it was difficult to discern a tariff because of the great variation of circumstances in such cases, in cases involving a plea of guilty a range could appropriately include sentences from 6 months' suspended imprisonment to 2 years' immediate imprisonment.

31 Wiltshire v Mafi [2010] WASCA 111 was an appeal by the State against the setting aside by McKechnie J of a sentence of imprisonment of 15 months by a magistrate. McKechnie J resentenced the respondent offender to a term of imprisonment of 12 months suspended for 9 months. In upholding the appeal the Court of Appeal held the sentence of 15 months' imprisonment was the appropriate sentence to impose at the time the Magistrate imposed it. The Court of Appeal referred with approval to Wheeler JA's observations in Holden v The State of Western Australia, [42]. The Court also referred to The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [166] - [173], Mourish v The State of Western Australia [2006] WASCA 257 [12] and Kilner v The Queen [1999] WASCA 189 [22] - [27] and concluded that the review of those cases suggested that a sentence of 12 months suspended imprisonment is usually given for assaults occasioning bodily harm less serious than the assault in the case before the Court. The features of the case that were the subject of the appeal that made it serious were as follows: the assault was entirely unprovoked; the respondent attacked the complainant a number of times, including chasing him when he tried to flee and kicking him on the ground when he caught him; the complainant suffered serious internal injuries including laceration of the spleen and the kidneys; the assault had serious physical, financial and psychological effects on the complainant. The respondent was 20 years old at the time of the offence.

32 In Ali v The State of Western Australia [2013] WASCA 55 the Court of Appeal held that a sentence of immediate imprisonment of 12 months in respect of an assault occasioning bodily harm was outside a sound discretionary range and manifestly excessive. The appellant was a taxi driver who had assaulted a passenger who failed to pay his fare. The appellant pulled and hit the complainant so he fell to the ground and while the complainant was on the ground the appellant punched him and stamped on the complainant's knee. The appellant had no prior record of violent offences. The appellant was resentenced to imprisonment of 12 months suspended for a period of 12 months.

33 In Eric v Bull [2014] WASC 342 the appellant was sentenced to a term of immediate imprisonment of 7 months for an assault causing bodily harm. The appellant was a 31yearold man, 190 cm tall and of solid build. He punched an employee of a hardware store in the face following an argument about the lack of availability of a hire vehicle. The victim was 17 years old, 167 cm tall and of slim build. The victim suffered a broken nose, three broken teeth and cuts. The appellant had no significant record for offences involving violence. Corboy J allowed the appeal and imposed a sentence of imprisonment of 7 months conditionally suspended for 12 months.

34 The appellant is a young man. As I have recorded in the introduction to these reasons, he was 18 and 1/2 years of age at the time of the offence.

35 The appellant has no relevant record. He was employed both at the time of the offence and at the time he was sentenced. The character references handed up to the Chief Magistrate speak highly of the appellant's work ethic and his personality. He lives with his parents and, in so far as it is possible to tell from the materials, has the benefit of family support.

36 The appellant is a person of prior good character and his impulsive participation in the attack on the complainant was out of character.

The Sentencing Act

37 Section 6(1) of the Sentencing Act 1995 (WA) provides that the sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the offence must be determined taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of the victim of the offence; and any aggravating factors and any mitigating factors: s (6)(2). A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4).

38 For the reasons already given, the assault committed by the appellant was a serious assault. The Chief Magistrate's sentencing remarks make it plain that general deterrence and the requirement for the denunciation of violent attacks in licensed premises were significant factors in his Honour concluding that a term of immediate imprisonment was the only appropriate penalty.

39 As my review of the authorities discloses a sentence of immediate imprisonment may be an appropriate sentencing disposition for an offence of common assault.

40 I have concluded, however, that in this case the imposition of a term of imprisonment to be served immediately was manifestly excessive. My reasons for reaching this conclusion are as follows.

41 First, even though the appellant used a chair as a weapon, the level of criminality involved did not justify a sentence of immediate imprisonment. This was not a premeditated assault but an impulsive participation in a group attack. The assault did not cause the complainant any injury.

42 Secondly, the assault in this case was not as serious as the common assaults in those cases in which sentences of immediate imprisonment have been upheld on appeal. Nor was the assault as serious as those cases of aggravated assault or assault occasioning bodily harm to which I have referred above and which on appeal have resulted in sentences other than immediate imprisonment.

43 Thirdly, the appellant's youth and good antecedents are factors which favour a non-custodial sentence.

(ii) set aside the sentence imposed by the Chief Magistrate.

45 I will hear from the parties as to the appropriate sentence to be imposed.