Poletti v Adams [2005] WASC 66

Criminal law - Appeal from sentence of Magistrate - Summary conviction penalty - Extent to which summary conviction penalty limits the calculation of the appropriate sentence

Sentencing Act 1995 (WA), s 6

Appeal allowed and suspended term of imprisonment substituted

Dinsdale v The Queen [2000] HCA 54; (1999) 202 CLR 321

House v The King [1936] HCA 40; (1936) 55 CLR 499

Smejlis v Matthews [2004] WASC 158

Bensegger v The Queen [1979] WAR 65

Chua v The Queen [2001] WASCA 353

Little v The Queen [2001] WASCA 87

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

Miles v The Queen (1997) 17 WAR 518

R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104

R v Liddington (1997) 18 WAR 394

R v Minchington (1998) 104 A Crim R 502

1 BLAXELL J: This is an appeal from the decision of the learned Magistrate in the Geraldton Court of Petty Sessions on 9 December 2004, imposing a sentence of 12 months' immediate imprisonment (with parole) for an offence of assault occasioning bodily harm. Leave to appeal was granted on 8 February 2005 on the following grounds:

"The learned Magistrate erred in the exercise of his discretion by imposing a sentence that was manifestly excessive in all the circumstances of the applicant and of the offence.

PARTICULARS

(a) The learned Magistrate erred by failing to give sufficient weight to the following mitigating factors:

i. The applicant's early plea of guilty.

ii. The applicant's youth.

iii. The applicant's antecedents.

iv. The circumstances of the offence, including the issue of provocation.

(b) The learned Magistrate erred in the exercise of his discretion by failing to properly consider a suspended term of imprisonment."

2 The appellant was convicted following his early plea of guilty, and the facts as read out to the Court and as amplified in the pre-sentence report were as follows.

3 The appellant is aged 18 years and up until the date of the offence had always lived with his mother in Geraldton. For most of those years the appellant's stepfather had also lived in the mother's house, but about 12 months beforehand she had commenced a relationship with the 41-year-old complainant. Consequently, by the time of the offence, the house was shared by the appellant, his mother and her three other children, along with the complainant and his two children.

4 These domestic changes had affected the relationship between the appellant and his mother and had also caused some stress within the household. Furthermore, the mother had developed an alcohol habit and was regularly intoxicated as a result of her association with the complainant.

5 On the day of the offence the complainant and the appellant's mother were drinking at a local hotel and the appellant was at home hosting a party for his friends. The complainant then returned home from the hotel, leaving the mother behind. After arriving at the house he had an argument with the appellant during the course of which he invited the appellant outside for a fight. The appellant declined this offer to fight.

6 Approximately 2 hours later the appellant went to the hotel to fetch his mother and to bring her home. When she returned, she was intoxicated and had an argument with the complainant, during which she told him to leave the house. The complainant then collected his two children (aged 10 years and 14 years) and started to move away from the house, but came back to the front door to continue the argument.

7 The mother then went to hit the complainant, but the appellant intervened to stop her. The mother then shouted at the appellant words to the effect, "If you don't f...ing hit him, I will." In response to this urging from his mother, the appellant punched the complainant in the face with a clenched fist, knocking the latter to the ground. After the complainant fell to the ground the appellant continued to punch him in the face and head several times.

8 The complainant was able to struggle to his feet and drive away. However, he had trouble maintaining consciousness and sought emergency medical assistance. As a result he was flown by Royal Flying Doctor Service to Royal Perth Hospital, where he was found to have sustained fractures to the cheekbones and jaw. These injuries required operative treatment including insertion of three metal plates to stabilise the facial fractures. Approximately 60 sutures and staples were required

9 At the time of sentencing the learned Magistrate had a pre-sentence report outlining the appellant's background and family history. This confirmed that he was only 18 years of age and that he had no previous convictions whatsoever.

10 The pre-sentence report revealed that the appellant had been born in Geraldton and that his parents had separated when he was 18 months old. He was the only child of that relationship and his biological father had suicided when he was 6 years of age. By then his mother had become involved in a relationship with his stepfather, which had continued for 16 or 17 years. There were three children of that relationship, aged 14, 12, and 3 years. The appellant had a close relationship with his stepfather and half siblings.

11 The appellant had attended school until 15 years of age and had then taken a 6 months pre-apprenticeship course at TAFE with a view to becoming a boilermaker/welder. Subsequently, he worked on a casual basis with an engineering company for 6-12 months. He later obtained an apprenticeship with a glazing firm but had "deferred this appointment due to family problems". At the time of sentencing he had part-time employment as a doorman and glass collector at a local night club.

12 The appellant did not have any substance abuse problems and he had constructive leisure time pursuits. He accepted responsibility for his actions and appeared "remorseful for his behaviour, stating that he was protecting his mother".

13 As a result of the offence, the appellant had been "excommunicated from the family". This had had an emotional impact upon him and he was "trying to cope with the stress and grief associated with having no contact with his family". The appellant also acknowledged that he had anger management problems and appeared "keen to deal with this issue in an attempt to avoid a repetition of events".

14 I understand that there was no victim impact statement from the complainant.

15 Unfortunately, there is no transcript of the sentencing proceedings. However, I have an affidavit from the appellant's then counsel, Ms Kelly Bajgerytsch, who made a note of his Worship's sentencing remarks. According to Ms Bajgerytsch:

"To the best of my recollection, the learned Magistrate's reasons for sentence included the following issues:

a) This was a serious assault occasioning bodily harm charge.

b) The complainant was present with young children.

c) The offence was aggravated by -

i. the presence of the complainant's children;

ii. the exposure of young children to violence.

d) It was accepted that there was some degree of provocation and emotional response by the appellant, but:

i. the act to protect went beyond the bounds of the ordinary;

ii. the injuries were significant;

iii. the attack was prolonged;

iv. significant degree of force (60 stitches and staples).

e) The applicant was 18 years old with no prior history.

f) The pre-sentence report detailed his personal background, including mitigating factors, being:

i. youth;

ii. lack of previous record;

iii. family.

g) The offence was at the top end of scale and led to significant injuries.

h) The learned Magistrate said that he had to consider an immediate gaol term. Reference was made to the Supreme Court case of Smeldon (sic: [Smejlis]) v Matthews [2004] WASC 158, wherein an immediate gaol term was upheld.

i) The learned Magistrate considered the question of a suspended term of imprisonment and referred to the High Court authority of Dinsdale v The Queen. Specific reference was made to the decision of Kirby J at [85] on p 348 wherein s 76(2) of the Sentencing Act was considered. The learned Magistrate referred to the fact that the scheme of the legislation required the same considerations in considering the question of whether to suspend a sentence to be revisited in relation to the length of imprisonment to be imposed. This required the Court to reconsider what weight to give all factors, including matters personal to the offender and the objectives of cases. Objectives of cases may outweigh mitigating factors.

j) The learned Magistrate ultimately decided that the mitigating factors were outweighed by:

i. Seriousness of the offence.

ii. The consequences of the offence.

iii. The children present at the time of the offence.

iv. The significant injury."

16 It should be noted that the authority referred to in par h) was in fact Smejlis v Matthews [2004] WASCA 158. Furthermore, I infer that counsel incorrectly noted the learned Magistrate's reference to "objectives of cases" in par i). His Worship, at that point, was obviously referring to Kirby J's dictum in Dinsdale at 348-9 where his Honour said that the "objective features" of a particular offence might outweigh personal mitigating factors.

17 The principles which govern the outcome of the appeal are well-established. It is not the function of this Court to simply substitute the sentence that it would have imposed if it had dealt with the matter at first instance. The appeal can only succeed if it is shown that the learned Magistrate made some error in the exercise of his sentencing discretion. As was stated by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

18 In the present instance it is said that the learned Magistrate fell into error by imposing a sentence that was manifestly excessive in all of the circumstances and that this occurred as a result of a failure to give sufficient weight to mitigating factors and to properly consider a suspended sentence.

19 The starting point in considering these grounds is s 6 of the Sentencing Act 1995 which required the Magistrate to impose a sentence which was commensurate with the seriousness of the offence. In determining the seriousness of the offence, his Worship was obliged to take account of the factors set out in s 6(2) of the Act, being the statutory maximum penalty, the circumstances of commission of the offence, any aggravating factors, and any mitigating factors.

20 The appellant contends that when making this determination, his Worship failed to give sufficient weight to mitigating factors. This failure is said to be manifested by the description of the offence as being "at the top end of the scale", and by the quantum of the term of imprisonment which was one-half of (and probably had as its starting point) the maximum summary conviction penalty of 2 years.

21 The appellant submits that the 2004 amendments to the Sentencing Act requiring the reduction of sentences by one-third, also had the practical effect of reducing the maximum summary conviction penalty to 16 months. Accordingly, the 12-month term imposed on the appellant allowed for a discount of only 25 per cent from the maximum term available to the Magistrate. This would have been an appropriate discount for the plea of guilty alone, and it is argued that the learned Magistrate therefore made no allowance for other mitigating factors such as the appellant's youth and lack of previous convictions.

22 While this submission might seem to have substance at first glance, it is based upon a fundamental assumption which I believe to be wrong (viz. that the appropriate sentence was being determined within the range set by the summary conviction penalty). I consider this assumption is wrong, irrespective of whether the 2004 amendments have had the practical effect of reducing the summary conviction penalty by one-third (that being an interesting question which nevertheless does not presently need to be answered).

23 Quite obviously, the learned Magistrate was not determining an appropriate sentence within a range of 2 years as mandated by the summary conviction penalty. His Worship was arriving at the appropriate sentence, bearing in mind that the maximum term for the offence under s 317 of the Criminal Code was 5 years' imprisonment. If, after determining the seriousness of the offence and allowing for all reasonable discounts, an appropriate sentence would have exceeded 2 years' imprisonment, then s 5(9) of the Criminal Code enabled the Magistrate to commit the appellant for sentence by the District Court.

24 It follows, in my view, that a Magistrate may sentence an offender to a term which falls below the cap set by the statutory conviction penalty, notwithstanding that the starting point in calculating that term was in excess of that penalty. It also follows that in the present instance, the quantum of the term that was imposed cannot of itself indicate any failure to give sufficient weight to mitigating factors.

25 I am, however, troubled by his Worship's description of the offence as being at "the top end of the scale". Certainly, the serious nature of the injuries inflicted tends to support that description, but there were other aspects of the offence which, in my view, placed it somewhere around the mid level of culpability. It is significant in this regard that the offence occurred spontaneously without any premeditation or planning, that the appellant had previously resisted fighting the complainant, that he intervened only when there was about to be a violent confrontation involving his mother, and that he then struck the first blow at her urging.

26 It is also relevant when assessing culpability that no weapon was used, that there were no kicks to the head while the complainant was on the ground, and that the subsequent blows were limited to punching. Furthermore, the appellant's age and lack of maturity no doubt contributed to his loss of control in emotionally fraught circumstances.

27 As I understand the learned Magistrate's remarks, his Worship felt that he "had to consider an immediate gaol term" in light of the decision in Smejlis v Matthews [2004] WASC 158. In that matter aggregate terms totalling 18 months' immediate imprisonment with parole were reduced on appeal to 12 months. The offender was 22 years of age and had no prior convictions. He had committed four offences of assault occasioning bodily harm after considerable premeditation and planning, and in circumstances similar to a home invasion. He was also accompanied by three or four co-offenders all armed with weapons. The injuries inflicted on the four complainants were "serious", although not as severe as in the present instance. The convictions had also followed a hearing after the offender had pleaded not guilty to all charges.

28 Clearly, the circumstances in Smejlis were significantly different to those surrounding the present offence, and to my mind show a higher degree of culpability. In my view, the decision in Smejlis cannot provide any basis for the proposition that "an immediate gaol term had to be considered".

29 Nevertheless, his Worship did consider the question of whether or not there could be a suspended term, and he did so in a seemingly appropriate manner and in accordance with the decision in Dinsdale v The Queen [2000] HCA 54; (1999) 202 CLR 321. This resulted in the determination that the "objective features" of the case outweighed the mitigating factors, and that an immediate term was therefore required.

30 In coming to that conclusion, the learned Magistrate obviously took into account that there was "some degree of provocation and emotional response". However, in the course of sentencing, there was no specific reference at all to some particular mitigating factors of significance. These included the prior restraint shown by the appellant, his intervention to prevent a violent confrontation involving his mother, and her role in instigating the offence. As I have previously observed, his Worship also appears to have overlooked further mitigating factors when determining that the offence was "at the top end of the scale".

31 I am therefore driven to the conclusion that the learned Magistrate did not put all relevant factors into the balance when considering whether the objective features of the offence outweighed mitigating personal considerations. It also necessarily follows that, with all due respect to his Worship, his sentencing discretion miscarried and that the appeal should be allowed.

32 This being so, I am required to substitute the decision that I find ought to have been made at the time of sentencing. In my view, when regard is had to all of the mitigating factors I have referred to, they are not outweighed by other aggravating features of the offence. I consider that a suspended term would be commensurate with the overall seriousness of the offence and that the sentence that ought to have been imposed was 12 months' imprisonment suspended for 12 months.