PEDROCHI -v- BROWN [2021] WASC 81 (25 March 2021)

1. Ms Hallam gave evidence at trial. The learned Magistrate found that Ms Hallam was an honest, credible and reliable witness. Her account of the assault, which her Honour accepted, was as follows.
2. On the evening of 16 December 2018, Ms Hallam attended the appellant's home. They had met on 21 September 2018 and had had an intimate personal relationship.
3. Ms Hallam and the appellant got into an altercation which involved some pushing and shoving between them.
4. Ms Hallam walked away from the appellant, toward the kitchen and, while she had her back to him, the appellant punched her in the face on the right side, causing her to fall to the ground.
5. The appellant then dragged Ms Hallam into the lounge room. He told her to 'sit down and shut the fuck up'. Ms Hallam said she wanted to go. The appellant started to yell at her again in similar terms.
6. The appellant then grabbed Ms Hallam by the throat and pushed her up against the wall, strangling her. He used sufficient force that Ms Hallam could not breathe.
7. Ms Hallam struck the appellant, attempting to get him off of her. The appellant punched Ms Hallam in the face. This is how she described it:

He has put his fist back and just punched me right in the face and I'm just, like - like, looked down. Like, I got - I hit my head on - at the back - at the back of the wall and, like, that really hurt. Like, it's like a shock to me into, like, you know, being awake sort of thing. And I've got - I've got my hands on my face and then it's just all warmth. Like, warm - that's all I can remember is all this warmth going, like, real hot blood just dripping everywhere. It was, like, everywhere. He has, like, freaked out a bit. You know, gone and got a towel. Told me to clean my mess up. Dragged me into the bathroom, like, maybe - like, and he's throwing - throwing paper and shit at me. 'Clean your fucking face up. Clean the fucken - clean your fucking mess up. What - what did you do? What did you do?' And I'm, like, 'I didn't do this' and he's, like, 'What are you going to say? What are you going to tell people? What are you going to - you fell down the fucken stairs. You did this. I didn't do this'.

1. Photographs were tendered in evidence that depict the injury and bleeding to Ms Hallam's left eye, together with redness to her right cheek, neck and collarbone area. The injuries were clearly significant and would have involved a significant degree of force. The laceration to Ms Hallam's face is evident on the photographs.
2. The appellant's defence, which the learned Magistrate rejected, included the suggestion that Ms Hallam had struck herself or was trying to hurt herself.

1. The statutory maximum penalty for the offence of assault occasioning bodily harm in circumstances of aggravation is 7 years imprisonment, or 3 years imprisonment and a fine of $36,000 when the offender is dealt with summarily. While the maximum sentence that the learned Magistrate could impose in this case was one of 3 years imprisonment, it is relevant to have regard to the statutory maximum of 7 years imprisonment in assessing the seriousness of the offence.[1]

1. The appellant was, at the time of sentencing, 40 years of age. He has one adult daughter.
2. The appellant has a significant criminal history, including convictions for assaults relating to another former partner. It is also apparent that he has had, in the past, significant substance abuse issues.
3. In this latter context, while the appellant had been in custody pending trial for the offence, he had enrolled in an Alcohol and Other Drug program, with a role as peer support. He expressed a desire to change his life.

1. The learned Magistrate commenced her sentencing remarks by observing that the offence was a very serious example of an assault of its type. Her Honour said that it was in the 'upper end' of seriousness, because it was a protracted assault. Her Honour remarked that Ms Hallam must have thought she was going to die and that that was 'in fact ... what her evidence was': she thought she was going to die.
2. Her Honour did not make a specific finding in relation to Ms Hallam's evidence that the appellant made threats to kill; although, as I have noted above she did accept Ms Hallam's evidence that she thought she was going to die. Ms Ajduk, who appeared for the appellant, nevertheless quite properly accepted that Ms Hallam's evidence as to the appellant's comments around the time of the assault (referred to at [15] above), in which he placed responsibility on Ms Hallam, were properly to be taken into account in assessing the seriousness of the offence. I accept Ms Ajduk's submission however that there was not a specific finding as to a threat to kill, and that it did not form part of the learned Magistrate's reasons.
3. While not expressly referred to by the learned Magistrate, Ms Ajduk also accepted that the appellant was to be sentenced on the basis that he had displayed no remorse in relation to the offence. Indeed, any expression of remorse would be wholly inconsistent with the manner in which he conducted his defence, which sought to attribute to Ms Hallam responsibility for her own injuries.
4. The learned Magistrate made specific reference to Ms Hallam's vulnerability, particularly in the context of the strangulation. Her Honour said:

I'm looking at a case of non‑fatal strangulation, which is extremely serious. The courts now recognise how serious that action is. It placed her in a very vulnerable position.

1. The learned Magistrate stated that a term of imprisonment was the only option open to her and 'it must be of significance'. Her Honour noted that the appellant could not receive a discount for a plea of guilty. In relation to the appellant's criminal history, her Honour noted that his record did not aggravate the offending. She said it 'doesn't make it any worse' but noted the history of other incidences of domestic violence.
2. Her Honour observed that there was very little else that could be said by way of mitigation, apart from the fact that the appellant was now making significant steps toward rehabilitation.
3. Accordingly, her Honour imposed a sentence of 2 years and 6 months imprisonment, backdated to commence on 21 August 2019. The appellant was made eligible for parole and her Honour also extended the duration of a violence restraining order against the appellant for the protection of Ms Hallam for the period of the appellant's life.[2]

The sentence was manifestly excessive having regard to the circumstances of the offending, the personal circumstances of the appellant and sentencing standards.

1. The ground asserts implied, rather than express, error. There is no suggestion that the learned Magistrate made any error of law or fact or took into account any irrelevant matter (apart from the clerical error, the subject of ground 2).
2. The relevant principles in relation to implied error are well established. They include the following matters.[3]
3. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
4. In determining whether a sentence for an individual offence is manifestly excessive the offence should be viewed in light of the maximum sentence for that offence, the standards of sentencing customarily imposed with respect to it, the place that the offender's conduct occupies in the scale of seriousness of offences of that type, and the offender's personal circumstances.
5. In this context, comparable cases provide a flexible, rather than rigid, guide to sentencing standards for any offence. A sentencing range (if in fact one can be shown to exist for an offence) is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. Even if a sentence imposed is outside that range, that does not necessarily establish that the exercise of the sentencing discretion miscarried.[4]
6. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
7. In the case of the offence of assault occasioning bodily harm, the wide variety of circumstances in which it may be committed is such that there is no tariff for the offence.[5]
8. As a consequence, reviews of previous authorities have demonstrated a wide range of sentences customarily imposed for this offence. As the Court of Appeal observed in Duncan:[6]

In Holden v The State of Western Australia Wheeler JA reviewed previous authorities and concluded that in cases involving pleas of guilty for that offence, sentences expressed in post‑transitional terms from 6 months' suspended imprisonment, to 2 years' immediate imprisonment, were commonly imposed. It must, of course, be borne in mind that a discount for a plea of guilty will result in a lower sentence than in a case where the offender has proceeded to trial. In any event, her Honour's summary of the post transitional range of sentences customarily imposed should not be understood as suggesting that a sentence outside that range would be erroneous.

Most of the cases mentioned above were decided a decade or more ago. Older authorities must be considered with some caution because they may not reflect contemporary sentencing standards. In addition, legislative amendments to recognise the commission of assaults within family and domestic relationships as a specific aggravating factor has encouraged firmer sentences for such offences.

1. The aggravating factor that the assault occurred in the context of the intimate personal relationship that had existed between the appellant and Ms Hallam was, of course, present in this case. I will return to this later.

1. In support of his contention that the sentence imposed on the appellant was manifestly excessive, the appellant referred to a number of decisions of this Court (including the Court of Appeal), including Riddoch v Chiera, Chidoti v Terrey,[7] Pureau v The State of Western Australia,[8] Gillespie v The State of Western Australia,[9] McComish v Harman,[10] Messiha v Plaucs,[11] Stokes v Auckland,[12] The State of Western Australia v Cheeseman,[13] Morgan v Kazandzis,[14] Paskov v Hull,[15] Elliott v Blanchard,[16] Hansen v The State of Western Australia,[17] and Duncan.
2. These decisions reveal a very wide range of sentences for assault occasioning bodily harm and aggravated assault occasioning bodily harm, ranging from a 12‑month community based order (in McComish v Harman) to a term of 3 years imprisonment (in Duncan). Clearly a number of those cases involved sentences lower than the sentence imposed in the present case. In that regard, the decisions as a whole confirm the correctness of the observation in Duncan that there is no tariff for the offence of assault occasioning bodily harm.[18] It is also notable that all of those decisions, save for Pureau, Morgan v Kazandzis and Duncan, concerned sentences imposed following pleas of guilty.
3. Ms Ajduk made particular reference to the recent decisions in Riddoch v Chiera and Chidoti v Terrey in which sentences were imposed that were substantially lower than in the present case (14 months and 9 months imprisonment respectively). The offences in both of those cases were similar to the circumstances in the present case, involving as they did both domestic relationships and incidents involving choking or strangulation.
4. Those cases, which both involved pleas of guilty, included significantly different personal circumstances. The offender in Riddoch v Chiera, while not youthful, was 25 years of age and had a limited criminal history. He was remorseful and was undergoing counselling. In Chidoti v Terrey the appellant was also remorseful and had sought out relationship counselling of his own volition.
5. It is also notable that in both Riddoch v Chiera and Chidoti v Terrey leave to appeal was refused on the basis that the contention that the sentence was manifestly excessive had no reasonable prospect of success. Where an appeal on the ground of manifest excess is refused leave, on the basis that it has no reasonable prospect of success, it may have very little utility as a comparable sentence. Where a sentence is, in effect, not even arguably excessive, it can in no way provide a marker as to the upper limits of the proper exercise of discretion.
6. Given the wide variety of circumstances involved, it is neither necessary, nor particularly productive, to review each of the other cases cited to me in detail.
7. It is perhaps sufficient that I refer to those decisions involving terms of imprisonment comparable to that imposed in the present case (namely terms between 2 and 3 years imprisonment): Gillespie, Pureau, Duncan and Hansen.
8. The appellant in Gillespie pleaded guilty to 11 separate offences, which included two offences of aggravated assault occasioning bodily harm (on separate occasions). The appellant was sentenced to a total effective sentence of 4 years imprisonment. The individual sentences for the two offences of aggravated assault occasioning bodily harm were 2 years imprisonment and 12 months imprisonment respectively.
9. Those offences in Gillespie were committed on the offender's partner. The first offence consisted of the offender grabbing the complainant by the throat, constricting her airway and causing her to lose consciousness. She was left with bruising to her neck and throat.[19] The second offence consisted of the offender throwing two washing baskets at the complainant, causing her to fall to the ground. When she was on the ground, the offender pinned her down with the legs of a chair, shouting at her and threatening to put the chair through her head. The offender struck her several times to the face and body causing bruising to her arms.[20]
10. The offender's personal circumstances in Gillespie were similar to the appellant in this case, save that the offender in Gillespie was eight years younger. He also received a 25% discount for his pleas of guilty.
11. Leave to appeal was refused in Gillespie, on the basis that the challenge to the totality of the sentence had no reasonable prospect of succeeding. Given that leave was refused in that case, and it involved considerations of totality, Gillespie provides little assistance as a comparator. Nevertheless, it is notable that the Court gave individual and particular attention to the two offences of aggravated assault occasioning bodily harm.[21] There was no suggestion that the individual sentences for those offences, including 2 years imprisonment for the offence involving strangulation, was arguably excessive.
12. The appellant in Pureau was convicted, following trial, of three offences against his partner (of some 6 weeks), including unlawful detention, a threat to kill and aggravated assault occasioning bodily harm. He was sentenced to a total effective sentence of 6 years imprisonment. The individual sentence for the offence of aggravated assault occasioning bodily harm was 2 years imprisonment. The circumstances of that offence were that the appellant tried to taser the complainant in the face. As she raised her arms to protect herself, the taser split part of her right thumb.[22] The individual sentence for that offence was not the subject of the appeal, which focused on the sentences for unlawful detention and threat to kill and on totality grounds. Leave to appeal was refused.
13. While Pureau also provides little assistance as a comparator, it may be noted that the circumstances of the individual offence of aggravated assault occasioning bodily harm in that case, was a good deal less serious than in the present case.
14. The appellant in Hansen was sentenced, on his pleas of guilty, to a total effective sentence of 6 years and 6 months imprisonment in relation to one count of aggravated assault occasioning bodily harm which he received 2 years and 6 months and aggravated grievous bodily harm for which he received 4 years. The offence of aggravated assault occasioning bodily harm was committed against the offender's domestic partner and the offence of aggravated grievous bodily harm was committed against the offender's 67‑year‑old neighbour, who had come to the aid of the offender's partner.
15. The assault of the offender's partner in Hansen was quite different to the present case; it involved him punching her and hitting her in the ribs with a wooden implement. It did not, however, involve strangulation. The appellant in Hansen was 31 years of age and received a 20% reduction on account of his plea of guilty. The sentencing judge in that case accepted his expressions of regret and remorse.
16. The appeal in Hansen was brought on totality grounds. There was no appeal from the individual sentence of 2 years and 6 months imprisonment for the offence of aggravated assault occasioning bodily harm. Nevertheless, the Court concluded that the total effective sentence was entirely appropriate and the ground that it was unreasonable or plainly unjust had no reasonable prospect of success.
17. Finally, Duncan was concerned with a single conviction, after trial, of assault occasioning bodily harm for which the appellant was sentenced to 3 years imprisonment. The circumstances of the offence in that case involved a brutal assault on the offender's domestic partner, which included him kicking her to the head, face and body. The offender in Duncan was of a similar age to the appellant in this case (37 years as at the date of the offence).
18. The Court in Duncan recognised that the sentence imposed was undoubtedly a significant sentence for an assault occasioning bodily harm but again refused leave on the basis that the appeal did not have a reasonable prospect of success. While the circumstance of aggravation (of being in a family relationship) was not the subject of the jury's verdict in that case, the Court emphasised that factor in assessing the seriousness of the offence. In particular, the Court referred to the need for general deterrence and the 'firming up' of sentences for violence in the context of domestic and family relationships.[23]
19. At the hearing of the appeal in the present matter, Ms Cook, who appeared for the respondent, submitted that the firming up of sentences for assaults in family relationships was apparent from a comparison of earlier authorities such as Messiha v Plaucs, Stokes v Auckland, and Elliott v Blanchard. I accept that submission, which is consistent with the trend of the authorities discussed in Duncan.

1. The sentence in the present case was undoubtedly high. It was, as is apparent, at the upper end of seriousness in terms of offences of this type that may appropriately be dealt with summarily. In my view, it is appropriate that leave to appeal on ground 1 be granted to recognise that it was reasonably arguable that the sentence of 2 years and 6 months was excessive. Indeed, the sentence would, if it had been imposed in similar circumstances, even 10 years ago, have sat outside the range of a proper exercise of sentencing discretion.
2. Nevertheless, having regard to the maximum penalty, the seriousness of the offence including the circumstance of aggravation, the appellant's personal circumstances and all relevant sentencing principles, I am not satisfied that I can infer error on the part of the learned Magistrate or that the sentence imposed was unreasonable or plainly unjust.
3. The offence committed by the appellant was extremely serious: it was unprovoked, sustained and vicious.
4. As the Court observed in Duncan, the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic or intimate relationships with them means that general deterrence is an important sentencing consideration in offences of this kind.[24]
5. It is characteristic of offences of this kind that they involve significant power imbalances (as the offence in this case did), that they are committed behind closed doors (as the offence in this case was) and that they are accompanied by lies and gas‑lighting (as the offence in this case undoubtedly was).[25]
6. These features underscore the need for the courts, in imposing sentences commensurate with the seriousness of the offence in each case and applying all relevant sentencing principles, to send a strong signal that violence of this kind is intolerable and will be dealt with accordingly. The 'firming up' of sentences for such violence, referred to in Duncan, reflects that need.
7. In addition, as the learned Magistrate expressly recognised, offences involving strangulation are particularly serious. As her Honour said 'a case of non-fatal strangulation ... is extremely serious' and that 'the courts now recognise how serious that action is'. In my view, her Honour can here be taken to be referring to the growing appreciation of the particular dangers associated with offences involving strangulation and with the role they play in cases of intimate and family violence. That recognition has, of course, led to legislative action, introducing a specific offence of suffocation or strangulation.[26] That offence was, of course, not in existence at the time of the appellant's offending against Ms Hallam. Nevertheless, as the learned Magistrate recognised, the recognition of the seriousness and danger of non‑fatal strangulation predated those legislative reforms and was a relevant sentencing consideration.
8. In addition, there was little in the way of mitigation on the appellant's part including a complete lack of remorse or acceptance of responsibility for his violence.
9. In all of the circumstances, in my view, while the sentence in the present case was at the top of the range of appropriate sentences, I am not satisfied that it was unreasonable or plainly unjust.
10. I would grant leave to appeal on ground 1 but would reject that ground.

1. On the day of the hearing, the appellant was given leave to add an additional ground, that 'the learned sentencing Magistrate erred in her calculation of the date on which the appellant's sentence was to be backdated'.
2. As I noted at the outset, the learned Magistrate backdated the appellant's sentence to commence on 21 August 2019. It is clear from her Honour's sentencing remarks that her Honour intended to give the appellant full credit for the time he had spent in custody (her Honour remarked in that context that she was being 'extra careful').
3. The parties were agreed that her Honour was out by four days. As far as mathematical errors go, I would observe that there but for the grace of God go all of us.
4. The respondent conceded that the appeal should be allowed to correct that mathematical error. In the circumstances I accept that concession and the appeal will be allowed in part to make that correction.
5. I would therefore allow the appeal in part and make an order varying the sentenced imposed by the learned Magistrate such that the date of 21 August 2019, being the date upon which the sentence of 2 years and 6 months was to commence, be substituted with the date 17 August 2019.
6. The sentence is otherwise unchanged.
7. I should add, in this context, that my amendment of the commencement of the sentence in the present case should not be taken as an indication that a minor error of calculation such as that which occurred in this case would generally be sufficient to justify the grant of leave to appeal in the interests of justice. The courts' powers to take into account time in custody, in s 87 of the Sentencing Act 1995 (WA), are themselves discretionary and do not necessarily require exact precision. Nor are appeals to this Court generally the appropriate vehicle for the correction of clerical errors, which are properly to be dealt with by the sentencing court under s 37 of the Sentencing Act.
8. In the present case, however, given that it was entirely uncontroversial, and arose in the context of an appeal that otherwise was sufficiently arguable to justify the grant of leave, it was efficient and in the interests of justice that I make the correction now.

(d) The sentence imposed be varied such that the date of 21 August 2019 being the date upon which the sentence was to commence be substituted with the date 17 August 2019.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Chief Justice Quinlan

[1] Riddoch v Chiera [2020] WASC 114 (Riddoch v Chiera) [48] (McGrath J).

[2] Restraining Orders Act 1997 (WA), s 63A.

[3] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).

[4] Taylor v The State of Western Australia [2016] WASCA 38 [24] ‑ [25] (Buss JA, Mazza JA agreeing). Duncan v The State of Western Australia [2018] WASCA 154 (Duncan) [43] (Buss P, Mazza JA & Pritchard J).

[5] Duncan [45] (Buss P, Mazza JA & Pritchard J).

[6] Duncan [45] ‑ [46] (Buss P, Mazza JA & Pritchard J).

[7] Chidoti v Terrey [2018] WASC 332 (Chidoti v Terrey).

[8] Pureau v The State of Western Australia [2017] WASCA 115 (Pureau).

[9] Gillespie v The State of Western Australia [2016] WASCA 216 (Gillespie).

[10] McComish v Harman [2016] WASC 324 (McComish v Harman).

[11] Messiha v Plaucs [2012] WASC 63 (Messiha v Plaucs).

[12] Stokes v Auckland [2012] WASC 2 (Stokes v Auckland).

[13] The State of Western Australia v Cheeseman [2011] WASCA 15.

[14] Morgan v Kazandzis [2010] WASC 377 (Morgan v Kazandzis).

[15] Paskov v Hull [2008] WASC 163.

[16] Elliott v Blanchard [2007] WASC 289 (Elliott v Blanchard).

[17] Hansen v The State of Western Australia [2019] WASCA 170 (Hansen).

[18] Duncan [45] (Buss P, Mazza & Pritchard JJA).

[19] Gillespie [8] (Mazza, Mitchell JA & Beech J).

[20] Gillespie [14] (Mazza, Mitchell JJA & Beech J).

[21] Gillespie [46] ‑ [48] (Mazza, Mitchell JJA & Beech J).

[22] Pureau [19] (Buss P, Mazza JA & Beech J).

[23] Duncan [46] (Buss P, Mazza & Pritchard JJA).

[24] Duncan [45] ‑ [46] (Buss P, Mazza & Pritchard JJA).

[25] See [15] above ('You did this. I didn't do this').

[26] See Family Violence Legislation Reform Act 2020 (WA), s 6.