PASKOV -v- HULL [2008] WASC 163 (28 July 2008)

Criminal law - Application for leave to appeal against sentence - Sentencing principles - Offence of assault occasioning bodily harm on de facto partner - Proximity of offences and totality principle - Whether magistrate erred in making sentences cumulative - Turns on own facts

Criminal Appeals Act 2004 (WA), s 6, s 9

1 The applicant, Steven James Paskov, seeks leave to appeal against certain sentences imposed as a consequence of his guilty plea to charges brought before the Kalgoorlie Magistrates Court.

2 By prosecution notice dated 16 May 2007 he was charged that on 7 May 2007 at Kalgoorlie he unlawfully assaulted Michelle Clinch and thereby did her bodily harm in circumstances of aggravation, namely, being in a domestic relationship contrary to s 317(1) of the Criminal Code. I will call this charge KA 2706/07 the 'first charge'.

3 He was charged also that on 8 May 2007 at Kalgoorlie he escaped from lawful custody contrary to s 146 of the Criminal Code. I will call this charge KA 2707/07 the 'second charge'.

4 He was later charged by prosecution notice dated 13 November 2007 that between 3 and 4 November 2007 at Piccadilly he unlawfully assaulted Michelle Clinch and thereby did her bodily harm in circumstances of aggravation, namely, domestic relationship contrary to s 317(1) of the Criminal Code. I will call this charge KA 5858/07 the 'third charge'.

5 He was charged also that between 3 and 4 November 2007 at Piccadilly he failed to comply with a requirement of his bail undertaking entered into on 17 May 2007 in that he failed to comply with bail conditions contrary to s 51(2a) of the Bail Act 1982 (WA). I will call this charge KA 5859/07 the 'fourth charge'.

6 He was charged also with breach of a 9 month community based order which was imposed on 28 February 2007.

7 It appears from a transcript of the hearing in the Magistrates Court on 23 November 2007 that pleas of guilty were entered in respect of the first four charges.

8 I note in passing that the maximum penalty for an aggravated assault occasioning bodily harm is 3 years' imprisonment and a $36,000 fine. The maximum penalty for the lesser offence of assault occasioning bodily harm is 2 years' imprisonment and a $24,000 fine.

9 The maximum penalty for escape legal custody is 3 years' imprisonment and a $36,000 fine. The maximum penalty for breach of protective bail conditions is 3 year's imprisonment or a $10,000 fine or both.

10 The details of the facts and matters underlying the offences are set out in the transcript of the hearing in the Magistrates Court.

11 Put shortly, at about 8.30 pm on 7 May 2007 the applicant was at his home address in Kalgoorlie with the complainant as they had been living together in a domestic relationship for the past two months. They had an argument which lasted about 30 minutes and ended with the complainant saying that she was going to pack her things and leave.

12 As she was getting ready to leave the applicant grabbed her, pushed the back of her head into a window, causing the window to smash, and she fell on the ground. He then dragged her out of the front door, kicked her three times to her back and rib area, and also punched her to the head a number of times, causing her head to hit the railing behind her, whereupon she passed out.

13 When the police arrived the applicant locked himself inside the house and refused them entry. The police conveyed the complainant to hospital and then returned to the house to advise the applicant he was under arrest. When they entered the house the applicant ran off. He was finally arrested some days later on Monday, 14 May 2007.

14 It seems that the applicant was allowed bail. Within days of bail being granted he began to call the complainant in breach of protective conditions.

15 Later, on the night of 3 November 2007, the applicant and the complainant were at the residential address referred to earlier when the applicant became aggressive and assaulted the complainant by dropping her on the ground and kicking her repeatedly in the rib area. He also used his left ring finger to gouge her left eye. This was done with enough force to leave a bruised and swollen eye and a cut to the eyeball.

16 The applicant was sentenced for the subject offences by Magistrate Temby at the Magistrates Court at Kalgoorlie on Thursday, 20 December 2007 for the first four offences and for the further offence of breaching a 9 month community based order which had been imposed on 28 February 2007; that is, the fifth offence.

17 In summary, the applicant was sentenced to a term of 12 months for the first offence, 2 months for the escape legal custody or second offence, 12 months for the third offence, 12 months for the breach of bail or fourth offence and 6 months for the breach of the community based order. The terms for the second and third offences were to be served cumulatively upon the term for the first offence but the terms for the fourth and fifth offences were made concurrent with the term for the first offence.

18 This gave rise to an effective aggregate term of 2 years and 2 months' imprisonment in relation to the first four offences.

19 I note in passing that in the course of his sentencing remarks the learned magistrate described the first offence committed on 7 May 2007 as being 'assault occasioning bodily harm' when in fact, as mentioned earlier, it should actually have been characterised or described as 'aggravated assault occasioning bodily harm'.

20 The transcript does not suggest that this misdescription affected the sentencing process. However, if by chance it was more than a slip of the tongue, it is not an error which would have weighed against the applicant because, if anything, it meant that the learned magistrate was viewing the offence as of a lesser degree of seriousness. Accordingly, for the present purposes, the error, if it be one, can be simply put to one side, and I will proceed accordingly.

21 I note in passing that, as appears from the transcript, the applicant was represented in court at the time his pleas of guilty were received by the court.

22 By an appeal notice dated 17 December 2007 the applicant applied for leave to appeal against the sentences in respect of the first four offences. He described the terms of imprisonment imposed and noted that the head sentence was backdated to commence on 14 November 2007.

23 It was common ground that the applicant was also granted eligibility for parole. This means that in a case of an effective aggregate term of 2 years 2 months, being less than 4 years, he would be eligible for parole at the expiration of 13 months from the commencement of the term on 14 November 2007.

24 The grounds of appeal are described in this way:

1. That the Learned Magistrate imposed a sentence, which was manifestly excessive having regard to the Appellants antecedents and drug addiction.
2. In view of the fact that the charge of aggravated assault occasioning bodily harm and escape lawful custody occurred on the same day His Honour erred in making the sentences cumulative on each other.

25 The materials before me include a pre-sentence report dated 7 May 2008 signed by a senior community corrections officer I will call Ms T. It emerges that the applicant was then 36 years of age. He was born in Perth and is the second child in a family of three children. His parents separated early on and he stayed with his mother and her de facto partner. He left home when he was about 16 years old. He left school at Year 10 level and is said to be illiterate. He was working for about two seasons as a woodcutter for two years prior to his incarceration. He considers that this employment is available to him.

26 As to his domestic situation, he stated that he has a 5-year-old daughter from a previous de facto relationship but has not had any contact with her for about three years. Following that separation he mainly lead a bachelor's lifestyle until he commenced a relationship with the complainant in April 2007. He has said that he would like to resume the relationship. He is said to have been using amphetamine on and off since he was 17 years of age and acknowledges that alcohol abuse is a problem for him. He is said to be in good health.

27 It is said that the applicant committed these offences whilst under the influence of alcohol and amphetamine and regrets his actions. I note that he has a previous conviction related to domestic violence. He was convicted of the offence of assault occasioning bodily harm and breach of a violence restraining order on 13 April 2004 at Kalgoorlie. In that case the complainant was his former de facto partner with whom he had been living for about eight years. His court history includes convictions of stealing, burglary, receiving and driving under suspension.

28 On 28 February 2007, as indicated earlier, the applicant was placed on a 9 month community based order with a requirement to complete 150 hours community service. This was amended to 120 hours. His response was poor and according to the departmental record he had completed only six hours and last worked on 16 April 2007. Again, as indicated earlier, the subject offences were committed during the currency of the community based order and constituted a breach of that order.

29 Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.

30 In Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 it was said at [55] to [61] that the appeal must have a real prospect of success, bearing in mind that the purpose of the provisions is to weed out unmeritorious appeals.

31 The question of whether each ground has a real prospect of success obviously requires that some consideration be given to additional provisions and principles.

32 By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. By s 39, it must decide the appeal on the evidence and material that were before the lower court but this does not prevent consideration of any evidence that the lower court refused to admit.

33 It is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts, or allowing extraneous or irrelevant matters to affect the decision made. 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: House v The King [1936] HCA 40; (1936) 55 CLR 499; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

34 Section 6 of the Sentencing Act 1995 (WA) recognises that a sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.

35 The sentencing options include provision also for a variety of community based orders and conditionally suspended imprisonment, especially in the case of young offenders and those who have not previously served a term of imprisonment or have personality disorders that require treatment.

36 Section 88 of the Sentencing Act provides that an offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he has yet to serve unless the sentencing court orders that the subsequent fixed term is to be fixed cumulatively or partly concurrently with the earlier fixed term.

37 It is apparent from Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; (1998) 103 A Crim R 372 at 623 that an appropriate sentence is to be fixed for each offence followed by a consideration of cumulation or concurrence and then by questions of totality.

38 The totality principle enables a court to mitigate what strict justice would otherwise indicate if the overall sentence to be served is inappropriately long or too crushing. The key factor is proportionality with a view to ensuring that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: State of Western Australia v Viskari [2008] WASCA 143.

39 An appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences: Mill v The Queen (1988) 166 CLR 59; (1988) 36 A Crim R 468 at 63.

40 Antecedent history cannot be brought to account as an aggravating factor, but it can be relevant to show whether the instant offence reflects a continuing attitude of disobedience of the law: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; (1988) 33 A Crim R 230.

41 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 sentencing customarily observed with respect of 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 parties seeking relief: Chan (1989) 38 A Crim R 337 at 342.

42 Counsel for the State of Western Australia relied upon a series of previously decided cases which were said to indicate that the sentence imposed in this case was well within the appropriate range for offences of the kind under consideration.

43 In Iveson v The State of Western Australia [2005] WASCA 25 the male offender was convicted in the District Court of two counts of assault occasioning bodily harm. The victim was the offender's de facto partner and both offences breached a violence restraining order taken out by the victim. In relation to count 1 the offender struck the victim across her back with a pole and in relation to count 2 he choked the victim while lifting her off the ground. He was sentenced to 16 months' imprisonment on count 1 and 32 months' imprisonment on count 2.

44 In State of Western Australia v Anderson [2004] WASCA 157 the male offender was convicted in the District Court of one count of assault occasioning bodily harm. The victim was the offender's de facto partner. When the offender found the victim in bed with another man, he slapped and punched her, dragged her 200 metres and hit her repeatedly with a metal pole. He was sentenced to a period of 2 years' imprisonment.

45 In Miller v The Queen [2004] WASCA 84 the male offender was released on parole the day before the offences occurred. The victim was his former de facto and the mother of his children. The offender kicked and punched the victim, causing her to lose consciousness and sexually assaulting her. He was convicted in the District Court of one count of assault occasioning bodily harm and sentenced to a period of 2 years' imprisonment.

46 In Mead v Couper [2000] WASCA 345 the male offender was sentenced to a term of 18 months' imprisonment in relation to one charge of assault occasioning bodily harm. The victim was his de facto wife. They had been living together for six years and had three young children. The offender punched the complainant in the face with a clenched fist four or five times and then kicked her in the back when she was on the ground.

47 Let me now return to the circumstances of the present case.

48 It is apparent from the material facts that the offences committed by the applicant were particularly serious. On the occasion of the first assault the applicant pushed the complainant into a window with such force as to cause it to smash and then assaulted her aggressively by kicking and punching her with the result that she lost consciousness.

49 Then, some months later, the applicant assaulted the same complainant again, dropping her forcefully on her head on two occasions before kicking her repeatedly to the rib area. He caused severe damage to her left eye. This occurred while the applicant was on bail with protective bail conditions which were ignored.

50 As I have indicated, the applicant was 36 years of age and did not come before the court as a first offender. He had been involved in an offence of violence with respect to a previous de facto relationship.

51 I note also that there was a separation in time between the various offences and as to the first and second offences, they were offences of a different kind. To the extent to which two or more offences contain common elements, it would be wrong to punish the offender twice with the result that concurrence is appropriate where there is essentially one transaction or commonality is evident. However, I do not consider that any of the four offences can be characterised as being essentially one transaction or giving rise to an appraisal where commonality is evident.

52 In the course of his sentencing remarks the learned magistrate observed that the matters were serious. He went on to say that the court was no longer going to tolerate people who use their partner's as punching bags and the applicant had to learn that this was not the way to treat people. It is therefore apparent that his Honour gave consideration to the seriousness of the assault offences and to matters of general and personal deterrence. These observations appear to be apt in respect of a severe attack on a defenceless woman who was in a relationship with the applicant, especially when the attacks were sustained and persistent.

53 The learned magistrate did not refer explicitly to the totality principle but it is apparent from the way in which the sentences were structured that he gave consideration to the relevant principles because two of the matters before him gave rise to prison terms which were made concurrent with the head sentence. The terms imposed in respect of the first three sentences, having regard to the statutory provisions and principles mentioned earlier, could justifiably be prescribed as terms to be served cumulatively.

54 As I have indicated, where the offences occur on separate occasions and involve separate transactions, the sentences should as a rule be imposed cumulatively unless the totality principle would require another approach: R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159.

55 In my view, the applicant has not been able to identify any irrelevant consideration which justifies intervention by an appellate court. To my mind, the effective aggregate sentence imposed and the individual sentences assigned to each offence cannot be characterised as manifestly excessive. Accordingly, I consider that the application for leave to appeal must be dismissed. I will hear from the parties as to whether any other orders or directions are required.