Court of Appeal (WA)|2006-11-28|Before: McLure JA, Steytler P, Wheeler JA, Lure JA

Mourish v The State of Western Australia [2006] WASCA 257 (28 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOURISH -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 257

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Assault occasioning bodily harm - Whether term of imprisonment and period of suspension manifestly excessive - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Johnson v Hayter [2001] WASCA 118

Mical v Ward [2003] WASCA 149

Mitchell v The Queen [2001] WASCA 255

Poletti v Adams [2005] WASC 66

R v Zamagias [2002] NSWCCA 17

Robinson v Smith [2005] WASC 99

Stevens v Giersch (1976) 14 SASR 81

The State of Western Australia v Anderson [2004] WASCA 157

Thompson v The Queen, unreported; CCA SCt of WA; Library No 970435; 5 September 1997

Iveson v The State of Western Australia [2005] WASCA 25

Lim v The Queen [2002] WASCA 228

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Nicholls v Branch [2005] WASCA 51

Rauhina v The Queen [2002] WASCA 91

WO (a child) v Western Australia (2005) 153 A Crim R 352

1 STEYTLER P: I have had the advantage of reading the judgment of McLure JA. I agree with her, for the reasons that she has given, that the appeal should be dismissed. I wish only to add the comment that, while I agree that a term of 2 years' imprisonment, suspended for 2 years, cannot be said to be outside the range of a sound sentencing discretion, I would regard a sentence of 2 years' imprisonment for an assault of this kind as being at the very top end of an acceptable range.

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

3 McLURE JA: This is an appeal against sentence. The appellant was convicted after trial of one count of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA). He was sentenced on 22 March 2006 to a term of 2 years' imprisonment suspended for 2 years. The appellant appeals against that sentence on the ground that it is manifestly excessive. He claims the term of imprisonment and the period of suspension are too long.

4 The facts are as follows. On the evening of 28 September 2002 the appellant attended a function at the Northam RSL hall with his de facto partner. A number of his partner's family were also in attendance. During the evening, the appellant and his partner began arguing. His partner's sister, the complainant Dianne Slater, took her sister for a short walk outside the hall to calm her down. They then returned to the front of the hall. The complainant spoke to the appellant about an incident earlier in the evening when he had intentionally knocked a can from his partner's hands. The complainant asked the appellant why he had behaved in that manner. The appellant responded by grabbing the complainant by her hair and punching her once to the face. The learned sentencing Judge found that the bodily harm caused by the appellant to the complainant was of a relatively minor nature.

5 The appellant was aged 33 at the time of the offence and had a good employment history. The appellant and his partner had been together for some time however the appellant was not accepted by his partner's family. The sentencing Judge described the situation on the evening in question as highly charged and that alcohol had impacted on everyone's judgment.

6 The appellant had a relevant prior record of offending. On 17 January 1995, he was convicted of two counts of causing grievous

bodily harm and was sentenced to a total term of 4 years' imprisonment. On 28 May 1997, the appellant was convicted of one offence of common assault for which he was sentenced to a 12 month conditional release order. On 27 April 2005, the appellant was convicted of one count of unlawful wounding and was sentenced to 9 months' imprisonment suspended for 12 months. The offence for which he was convicted was committed on 22 August 1999. On that occasion there was an altercation between the appellant and his brother-in-law during which the appellant bit off part of his brother-in-law's ear.

7 On 13 July 2005, the appellant was again convicted of one count of unlawful wounding for which he was sentenced to 9 months' imprisonment suspended for 12 months. However, the offence the subject of that conviction took place on 7 March 2005, after the offence in this case. The sentencing Judge concluded that the appellant had problems with anger management.

8 The relevant legal principles are not in dispute. An appellate court is not entitled to intervene to alter a sentence merely because it would have exercised the sentencing discretion in a manner different than the sentencing Judge. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasons or if error can be inferred because the result is manifestly excessive: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

9 To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

10 The maximum penalty for the offence of assault occasioning bodily harm is 5 years' imprisonment. The maximum penalty on summary conviction is 2 years' imprisonment. That is a jurisdictional limit rather than the maximum penalty for the offence: Johnson v Hayter [2001] WASCA 118 at [10] per Miller J. As a result of the transitional provisions in Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act") a court cannot impose a term in excess of 3 years and 4 months and, in the case of a summary conviction, 16 months.

11 Before going to comparable cases, it is appropriate to record that the term of a sentence is to be determined without regard to the fact that it is to be suspended. That is, the Court must not impose a sentence of imprisonment longer than it would otherwise have imposed simply because it has decided to suspend the sentence: Dinsdale v The Queen (supra) at 346 per Kirby J; Thompson v The Queen, unreported; CCA SCt of WA; Library No 970435; 5 September 1997; R v Zamagias [2002] NSWCCA 17; Stevens v Giersch (1976) 14 SASR 81.

12 The following cases relate to the offence of assault occasioning bodily harm. Where the case was decided before the commencement of the Sentencing Amendment Act, the sentences have been converted to post-transitional sentences (with the pre-transitional sentence shown in brackets). The relevant cases include:

Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.

Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.

Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.

Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.

Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.

The State of Western Australia v Anderson [2004] WASCA 157 - the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.

Robinson v Smith [2005] WASC 99 - the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending.

13 Robinson v Smith, Poletti v Adams, Mical v Ward, Harvey v Ingles and Johnson v Hayter were all appeals from decisions of Magistrates who could not impose a term of imprisonment exceeding 2 years. Moreover, save for Robinson v Smith, these cases involved pleas of guilty, as did Mitchell v The Queen and State v Anderson.

14 The appellant's prior convictions demonstrate that this offence was not an aberration and that the sentencing Judge was correct to give significant weight to the need for personal deterrence as well as general deterrence. The circumstances of the offence in this case are, in terms of the degree and effect of the violence, remarkably similar to those in Hooper. However, the offender in that case was a first offender and remorseful. It is clear from the reasons of the Court of Criminal Appeal that they were significant factors in the Court's conclusion that the original sentence of 3 years was manifestly excessive and its reduction to 2 years. There is no question that the term of imprisonment in this case is, in all the circumstances, severe. However, having regard to the differences in the circumstances of the offenders in this case and Hooper, it cannot be said that a term of 2 years suspended for 2 years is outside the range of a sound sentencing discretion. I would dismiss the appeal.

Legislation Amendment and Repeal Act 2003

Mourish v The State of Western Australia [2006] WASCA 257

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Mourish v The State of Western Australia [2006] WASCA 257 (28 November 2006)

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Legislation Cited (1)

Cases Cited (6)