Criminal law - Appeal against sentence - Plea of guilty to assault on a public officer - Assault on bus driver of Transperth bus - Self-represented offender aged 49 with criminal record including assaults and with mental illness - Whether appellant should have been provided with opportunity to obtain legal advice or assistance before sentence imposed - Whether a failure to take proper account of appellant's mental illness - Whether failure to consider whether to suspend sentence of imprisonment - Whether obliged to resolve disputed questions of fact as to number of times offender hit victim, whether he had previously assaulted public officer and characterisation of events as including time to cool down before assault - Whether sentence of 12 months' imprisonment to be immediately served was manifestly excessive given personal circumstances of appellant including his mental illness - Whether distinction should be drawn between types of public officer - Relevance of change in maximum penalty for offence from 10 years to 7 years by Code s 318(1)(m)

Criminal law and procedure - Appeal against sentence - Application of proviso to an appeal - Admission of new and fresh evidence - Whether after allowing appeal court should proceed to resentence immediately

Criminal Appeals Act 2004 (WA), s 14, s 40

Criminal Procedure Act 2004 (WA), s 59

Sentencing Act 1995 (WA), s 39

Counsel invited to make submissions as to resentencing

Ashworth v The State of Western Australia [2006] WASCA 36

Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)

Chan v The Queen (1989) 38 A Crim R 337

Dao v The Queen (Unreported, WASCA, Library No 990015, 22 January 1999)

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

Dodd v Hoogewerf [2002] WASCA 15

DPJB v The State of Western Australia [2010] WASCA 12

Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246

Evans v Vanderheide [2001] WASCA 352; (2001) 126 A Crim R 239

F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125

Fennell v Somerville [2009] WASC 214

Furber v The Queen [2008] WASCA 233

Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Hill v Bodenham [2000] WASCA 37

Johnson v Hayter [2001] WASCA 118

Krijestorac v The State of Western Australia [2010] WASCA 35

Nevermann v The Queen (1989) 43 A Crim R 347

Pas v The State of Western Australia [2009] WASCA 210

Quinn v The State of Western Australia [2006] WASCA 99

R v Engert (1995) 84 A Crim R 67

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v Wright (1997) 93 A Crim R 48

Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358

Rotham v Cox (Unreported, WASC, Library No 940069, 14 February 1994)

Sakkers v Thornton [2009] WASC 175

Samuel v The State of Western Australia [2004] WASCA 154

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sparrow v Cox (Unreported, WASC, Library No 940068, 14 February 1994)

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

Wallam v Dent [2008] WASC 170

Withnell v Walker [2005] WASCA 8

Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

Yassin v Williams [2007] WASC 8

1 This is an appeal against a sentence of 12 months' imprisonment to be immediately served. The grounds of appeal on which I gave leave to appeal in substitution for those for which leave was previously given raise a number of issues arising out of the conduct of a sentencing hearing in the Magistrates Court involving a self-represented accused.

2 In these reasons I first set out the background to the appeal. I have found it useful to provide some substantial detail as to how the sentencing hearing unfolded, so that the substituted grounds of appeal may be better understood.

3 I next describe the appeal, before considering each of the grounds of appeal. I then turn to consider whether the proviso for appeals to a single judge of this court from a court of summary jurisdiction has application in this case, before considering the orders I should make in this appeal.

4 On 5 August 2009 the appellant appeared before Magistrate Tarr in the Magistrates Court in Perth. By Prosecution Notice 48233/09 the appellant was charged with one count of the offence of assaulting a public officer while she was performing a function of her office, contrary to Criminal Code (WA) (Code) s 318(1)(d).

5 The learned Magistrate, after referring to the charge, asked the appellant whether he was 'ready to have this matter dealt with today' (ts 2). The appellant replied 'Yes, your Honour', and then, on being asked to plead, the appellant said 'I plead guilty with mitigating circumstances' (ts 2).

6 The prosecutor then addressed the court, as follows (ts 2 - 3):

PROSECUTOR: There is a record. This instance the complainant is a 31 year old female bus driver employed by Southern Coast Transit, a provider of Transperth bus services in the Perth central business district as part of the State Government's public transport authority - and it is a brand name through which the Western Australian Government provides public transport services in the Perth metropolitan area. (indistinct) the complainant is a 31 year old female.

At 12.40 pm Friday 31 July the complainant was performing her duties as a bus driver driving a central area transit service number 18 on Mounts Bay Road. The accused, who is a passenger on the bus, has fallen asleep.

POWELL, MR: Yeah.

PROSECUTOR: Upon seeing the accused asleep the complainant has woken him - - -

POWELL, MR: (indistinct)

PROSECUTOR: - - - told him that he could not sleep on the bus. The accused became angry at this, raised his voice, became abusive towards the complainant. The complainant told him that he was to get off at the next stop. The complainant stopped the bus in front of the Mount Hospital on Mounts Bay Road. The accused walked up to the complainant, who was still seated in the driving position, began yelling at her refusing to get off the bus. The complainant told the accused she was calling security, reached for the two-way radio.

The accused grabbed the complainant's left arm, punched her with a right clenched fist three times to the left side of the face. At the time the complainant was wearing sunglasses which broke into her face. The accused then got off the bus and left the scene. The complainant was taken by St John Ambulance to Sir Charles Gardiner Hospital where she was admitted for treatment. On the same evening the accused attended the Perth city detectives office, participated in a video record of interview.

As a result of the incident the complainant received bruising on the left side of the face, bruising to her left arm and a five centimetre laceration above the left eyebrow which required five stitches. Costs are $60 (ts 2 - 3).

7 The learned magistrate then asked the appellant what he wanted to say on the matter, to which the appellant replied as follows:

'POWELL, MR: Your Honour, on the morning of that - that day I had attended the inner city Perth clinic because I suffer from Bipolar - and for the last four or five nights I've not been able to get any sleep, but I've been sleep deprived as a result of the new medication that I was put on - and I asked the doctor about that condition and she's agreed to reduce my medication from 60 mg of Flu (indistinct) to 40 mg so that hopefully I won't fall asleep, like I've been doing even in this courtroom. I'm very tired even right now as I speak.

I've been going through a difficult time with seeking a royal pardon for 12 years that I did in gaol illegally and I've been under a lot of stress over that and - as I said, I suffer from bipolar as a result of being abused as a child. I've been raped and molested and spat on and urinated on and generally assaulted by people, and yet I've always turned the other cheek when I've been assaulted, but on this day I fell asleep on the bus - you know, accidentally because of my condition, and I was woken up abruptly and rudely by the bus driver and we had an argument over it.

I tried to explain to her my condition but she refused to listen, and be apologetic over it - and then she threatened to call the security guards - and under a flight and fight situation and being frustrated, I hit her. I apologise - - - (ts 3)

8 At this point it appears from the transcript that the learned magistrate interjected, initiating an exchange with the appellant over the number of occasions on which the appellant hit the bus driver, and over the appellant's criminal record, as follows:

HIS HONOUR: But you hit her on three occasions.

POWELL, MR: Oh, no, I didn't - and as far as I know it was only twice. It might have been three but as far as I knew it was only twice that I hit her.

HIS HONOUR: (indistinct)

POWELL, MR; And I apologise for doing so. It's not in my normal character to hit someone - - -

HIS HONOUR: Well, you say that but you have had prior convictions for assault.

POWELL, MR: I have had a few prior convictions of assault but they've all been under while I've been abused by somebody else. All I'm simply doing is standing up for myself after being abused by people.

HIS HONOUR: Well - - -

POWELL, MR: Now, I know it's wrong to hit someone, your Honour, and I'd apologised for that but I - you know, I do have mitigating circumstances. I've been under a lot of stress over the last 18 years.

HIS HONOUR: Well, as I have said you have had prior convictions. There was an assault public officer in September 2006, a conviction for a common assault in October 2006, and in January of this year common assault - - -

POWELL, MR: What was this one with the public officer? I've never hit a - hit a public officer before.

HIS HONOUR: Well, your record shows that.

POWELL, MR: Well, that's wrong.

HIS HONOUR: But anyway, (indistinct) - - -

POWELL, MR: I've never hit a public officer before. I don't go around hitting people just for the sake of it.

HIS HONOUR: Well, I do not know what the circumstances of that were but (indistinct) - - -

POWELL, MR: And I am prepared to pay compensation to the lady for her hospital costs (ts 3 - 4).

9 I note from the criminal record available to me, as explained below, that the appellant was 49 years old at the time of the offending, and that there were other offences he had committed, none for which he had been sentenced later than May 1993, in the nature of indecent assault or indecent dealing, and for which he had received in each case sentences of imprisonment.

10 The learned magistrate then initiated an exchange with the appellant over the seriousness of the offence as follows (ts 4 - 5):

HIS HONOUR: Well, I think - I think the offence is more serious than that. It is - you know, there is certainly a concern in the community about (indistinct) - --

POWELL, MR: Well, I don't like being made a scapegoat of this - I mean - I mean, this is just a one - once and only incident against a bus driver - - -

HIS HONOUR: Well, it is not a matter of being - it is a matter of me dealing with the matter on the facts, and the facts that (indistinct) - - -

POWELL, MR: I mean, bus drivers should be a little bit more polite to us - us people - - -

HIS HONOUR: Oh - - -

POWELL, MR: - - -especially just with falling asleep - - -

HIS HONOUR: - - -that (indistinct) - - -

POWELL, MR: Is it a criminal offence to fall asleep, your Honour? (ts 4 - 5)

11 At this point the prosecutor addressed the learned magistrate on the character of the offending, to which the appellant responded, as follows:

PROSECUTOR: There seems to be two incidents, your Honour. There was the first time when she has gone down and told him that he cannot sleep on the bus, then she said, 'I am going to stop at the next bus stop.' So she has driven off. He has then come down and assaulted. So (indistinct) - - -

POWELL, MR: No, I haven't (indistinct) at all.

PROSECUTOR: - - -it is not after the first - there has been initial anger and then he has walked up to the complainant who is seated in the driving position - - -

POWELL, MR: Well, that's not the way it was at all.

PROSECUTOR: - - -(indistinct). So he has had time to cool down and (indistinct) - it is not as if he has just woken up (indistinct). So - - -

POWELL, MR: No, that was not the way it happened at all.

PROSECUTOR: So I believe it deserves an immediate term of imprisonment, your Honour (ts 5).

12 The learned magistrate at this point addressed the matter of the penalty he was minded to impose, and there was then an exchange with the appellant which culminated in the learned magistrate announcing his sentence, as follows:

HIS HONOUR: Yes. Well, it is not a case, as I have said, where you have not been convicted of similar assaults in the past, and I think I would be failing in my duty if I did not impose a penalty that is not only going to deter you but to be a deterrent to other people. You just cannot do this. You cannot use your bipolar as an excuse for this (indistinct)

POWELL, MR: Well, I'm not making it an excuse I'm just simply stating the reasons why I was - I not a man to make an excuse, your Honour - - -

HIS HONOUR: Well (indistinct)

POWELL, MR: I'm being honest enough here - - -

HIS HONOUR: - - -my view is that that is not - - -

POWELL, MR: - - -to know that I did make a mistake.

HIS HONOUR: - - -that is not a good reason, and it is all right to be sorry in hindsight but there is an expectation that people control their behaviour - and she was a female - - -

POWELL, MR: Well, what about all the times that I've been abused and raped and spat on, and everything else - - -

HIS HONOUR: Look (indistinct)

POWELL, MR: - - -and no-one ever has faced justice on that. Not once at all.

HIS HONOUR: Well, those matters are not - those matters are not before me today. The matters that are - the matter that is before me is you assaulting a bus driver, in the way that has been described, and causing her injury. She should not (indistinct)

POWELL, MR: Well, I'm prepared to pay a fine, your Honour, but I think a prison sentence is a little bit overboard when it's only one count of assault.

HIS HONOUR: Well, (indistinct) - well, it is one count of assault but the circumstances are aggravated. She was a woman who was driving a bus, going around her business. I do not know whether (indistinct)

POWELL, MR: Well, what about the fact that the mitigating circumstances that she abused me?

HIS HONOUR: Well, she (indistinct)

POWELL, MR: What right have they got to abuse me?

HIS HONOUR: I do not believe I have any alternative but to impose a custodial sentence. What I propose to do is sentence you to 12 months' imprisonment. I will make you eligible for parole. Yes, That is all. (ts 5 - 6)

13 By appeal notice dated 26 August 2009 the appellant applied for leave to appeal against the sentence. On 4 December 2009 Jenkins J of this court granted leave to appeal on the grounds stated in the appeal notice.

14 At the hearing of the appeal before me, counsel for the appellant applied to substitute new grounds of appeal. Counsel for the respondent indicated she had no objection, and I determined such substitution should be allowed, on the basis leave to appeal on such grounds could have been allowed on Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [61] (Steytler P, Wheeler and Roberts-Smith JJA).

1. The learned Magistrate erred in law by neither offering nor affording the Appellant the opportunity to seek legal advice or representation, in view of the seriousness of the offence and the fact that he was considering imposing a sentence of imprisonment (whether to be served immediately or not), and in view of the Appellant having stated that he was suffering from a mental illness;
2. The learned Magistrate erred in law by failing to consider (and in particular by calling for a psychiatric report) whether the Appellant's mental illness had caused or contributed to the offending behaviour, or should otherwise impact on a just sentence, including by requiring a sensible moderation of the factors of general and specific deterrence;
3. The learned Magistrate erred in law by failing to consider whether he should suspend the sentence of imprisonment;
4. The learned Magistrate erred in law by failing to resolve disputes as to significant facts which had become apparent during sentencing submissions and by proceeding to sentence on the basis of the prosecution versions of those facts, and
5. A sentence of imprisonment to be immediately served was manifestly excessive given the personal circumstances of the Appellant, in particular his mental illness.

17 There was no contest before me that the learned magistrate had not made any inquiry of the appellant in order to enable him to satisfy himself in the terms of Criminal Procedure Act 2004 (WA) s 59(2)(a) and (b), as follows:

(2) Before requiring the accused to plead to the charge, the court must -

(a) be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it;

(b) be satisfied the accused understands the charge and the purpose of the proceedings ...

18 I further note authorities concerning how a sentencing court should deal with a person in the position of the appellant, authorities which have not referred to any such legislative provision. Both counsel referred me to Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475, from which I note [35], referring to some of those authorities, in the judgment of Malcolm CJ, with whose judgment Murray and Anderson JJ agreed:

The approach which the Court should take when an unrepresented person attends at Court and pleads guilty to an offence was considered by the Full Court of the Supreme Court of South Australia in Cooling v Steel (1971) 2 SASR 249 and 250 as follows:

... the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.

If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct forfeiture of property or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath and that he may call witnesses or produce other relevant material for the consideration of the court.

Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor, (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed (1970) SASR 374 and R v Maitland (1963) SASR 332, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.

In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.

19 I am of the view the need for the approach in Wood is heightened where the presiding judicial officer is aware the accused is suffering from a mental condition which might affect his ability to represent himself. The appellant told the learned magistrate that he was suffering from 'Bipolar' (ts 3). In my view this disclosure was sufficient to heighten the need for the approach in Wood.

20 Counsel for the respondent put emphasis on the fact the learned magistrate had asked the appellant at the outset, before his plea, if he was ready to be dealt with on that day (ts 2), to which appellant replied he was, as I have indicated. Counsel also placed emphasis on the fact the learned magistrate gave the appellant an opportunity to explain his version of events and raise matters personal to him (ts 3).

21 However, I do not consider the exchange at the outset met the need for the approach in Wood, and indeed in that case there appears to have been a similar exchange which did not preclude the application of that approach: see [11] and [42].

22 I deal with the subsequent opportunities afforded the appellant to explain his version of events and raise matters personal to him under grounds 4 and 2, respectively, below. On my conclusions for those grounds such opportunities as he was afforded were in my view insufficient for the appellant as a self-represented offender, particularly one with the mental condition he had described and particularly by reason of the fact that the learned magistrate was considering a sentence of immediate imprisonment.

23 I note in that last respect Yassin v Williams [2007] WASC 8 [12] - [20] (Blaxell J), referring to Wood among other authorities as follows:

A significant feature of the sentencing process in the present case is that the Magistrate did not seek any information as to the appellant's personal background and circumstances. In this regard, all that was known to the court was the appellant's age (which was apparent from the prosecution notice) and the fact that he had no previous convictions. It follows that the Magistrate considered the offence to be so serious that it warranted a term of immediate imprisonment regardless of the appellant's personal circumstances.

The appellant contends by his first ground of appeal that the Magistrate was in error in coming to this view. The underlying contention of the second ground of appeal is that the appellant was denied a proper opportunity to make submissions as to penalty. The second ground also relies upon a line of authorities in South Australia to the effect that:

'It is well settled that in the case of a self-represented defendant, where a Magistrate is contemplating an order of imprisonment, the defendant should be informed of that and be given an opportunity of seeking legal advice.' (Franks v Police [1998] SASC 6897.)

Similarly, in Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11, Wicks J at [18] stated:

' ... if a custodial sentence is in contemplation, as was the case here, the learned Magistrate should have warned the appellant [of] the possibility that he might receive such a sentence and offered to grant him an adjournment to enable him to obtain the services of counsel or at least, the services of a solicitor, to advise him generally on his situation.'

It was in much the same vein that in the earlier South Australian case of Cooling v Steel (1971) 2 SASR 249 at 250, Wells J noted that:

'It is imperative ... that courts of summary jurisdiction should follow practices that will avoid the possibility that a party ... should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him.'

In this State, Wheeler J in State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278 at 279 has referred to Cooling v Steel as one of:

' ... many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced.'

The decisions in Landers and in Cooling v Steel were referred to with approval by the Full Court in Wood v Marsh [2003] WASCA 95. Furthermore, in Mical v Ward [2003] WASCA 149 Barker J relied upon all of these authorities in coming to the conclusion that in the particular circumstances of that case:

' ... I have a real reservation about the extent to which the Court brought to the attention of the appellant his entitlement to seek legal advice or representation because of the seriousness of the charge and the real possibility that a sentence of imprisonment might be imposed following his plea of guilty. While the appellant, as the matter proceeded, was accorded the right to dispute material facts alleged by the prosecutor, once those facts were found by the learned Magistrate ... nothing further was said by the Court before the sentence of imprisonment was imposed to apprise the appellant of the seriousness of the offence and the likelihood that he might suffer a sentence of imprisonment; nor was he afforded the opportunity to seek an adjournment to obtain legal advice or to have counsel or a solicitor make further representations on his behalf before sentence was imposed.'

It would therefore seem that in this jurisdiction (as in South Australia) it is 'well settled' that a Magistrate considering a sentence of immediate imprisonment for a self-represented offender should first inform the defendant of that prospect and offer the opportunity of an adjournment for the purpose of legal advice. Of course, in respect of minor offences in some remote areas of the State where there is no real hope of a defendant obtaining legal advice, it might be impractical to take this step. However, in the present instance, it would have been very easy for the Magistrate to have stood the matter down until later in the day to enable the appellant to consult duty counsel. By then the appellant would probably have changed his mind about obtaining legal advice given that his expectations of a fine had evaporated.

The late involvement of duty counsel would also have had the benefit of bringing all of the appellant's personal circumstances to the attention of the court before sentence was passed. Some of those circumstances were undoubtedly mitigatory in effect, and s 6(2) of the Sentencing Act required that they be taken into account. Even if the Magistrate had remained of the opinion that a sentence of immediate imprisonment was the only appropriate sentence, this additional information may have had some impact on the length of the term imposed.

As it was, the failure to offer the appellant a final opportunity for legal advice meant that he was unable 'to give a good account of himself' and denied the chance of making full submissions in mitigation of penalty. For these reasons, I consider that the second ground of appeal must be upheld.

24 In this case, unlike Yassin, the appellant did have the opportunity, which he took up, not only to provide his version of events, but also to address matters in his personal background and circumstances. However, in my view the opportunities the appellant had did not mean he was able 'to give a good account of himself' and did not mean he had the chance to make full submissions in mitigation of penalty, for the following reasons.

25 The appellant's opportunity to provide his version of events permitted him to indicate he believed the number of times he struck the bus driver was not the 'three occasions' put to him by the learned magistrate, but rather

as far as I know it was only twice. It might have been three but as far as I know it was only twice that I hit her (ts 3).

26 The appellant also was able to dispute the character of the offending as put later by the prosecutor, in particular the matter of the 'time to cool down', between the initial incident of the appellant being told by the bus driver 'he cannot sleep on the bus' producing the appellant's 'initial anger' at being so dealt with, and the later incident, where the appellant 'walked up' to the bus driver and hit her (ts 5). The appellant twice during this characterisation of the events surrounding the offending said that was 'not the way' that it happened 'at all' (ts 5).

27 As I will indicate below, it appears both the matter of the number of times the appellant struck the bus driver and the matter of the appellant having had time to cool down had some significance in the learned magistrate's deliberations, as having a tendency to cause him to impose a more severe punishment. Had the appellant had the benefit of legal advice or assistance there would have been an opportunity to address the learned magistrate on the need to resolve the disputed matters of fact consistently with the authorities on the proof of matters with such a tendency. Those authorities indicate that the burden was on the prosecution to establish such matters beyond a reasonable doubt if the learned magistrate were to treat them as having that tendency. I consider those authorities under ground 4, below.

28 The appellant also had the opportunity to present on his personal background and circumstances. In particular he was able to tell the learned magistrate he was 'Bipolar', and refer to his medication for that condition which he said deprived him of sleep, a deprivation which caused him to fall asleep in a number of settings, apparently including on the bus on the day in question (ts 3). The appellant referred also to his history of assaults after being 'abused by people' (ts 4).

29 The learned magistrate appeared to put the bipolar condition aside as a sentencing consideration, because the appellant could not, he said, use it as 'an excuse' (ts 5), while indicating that the history of being abused and similar matters were 'matters not before me today' (ts 6). Had the appellant had the benefit of legal advice or assistance, there would have been an opportunity to address the learned magistrate on the appellant's mental condition as potentially significant to sentencing notwithstanding that it was not 'an excuse'. Such an address would have been by reference to the authorities I will consider under ground 2, below.

30 True it is, as counsel for the respondent pointed out, that the appellant evidenced some understanding of the sentencing process, whether by reason of having been sentenced on previous occasions, including to imprisonment to be immediately served, or otherwise. That evidence lay principally in his use of the language of mitigation. However, I do not see how the learned magistrate could have drawn from that evidence that the appellant, particularly with his mental condition, appreciated the need to consider the requirements for proof of circumstances that might be regarded by the learned magistrate as tending to increase the severity of the punishment the appellant faced, or that the appellant appreciated the potential relevance of his mental condition to his sentencing.

Ground 2: failure to consider mental illness

32 I have already indicated the respect in which the learned magistrate considered the appellant's bipolar condition.

33 It appeared not to be in contest before me that the appellant's bipolar condition was within the description 'serious psychiatric illness' in R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398. That authority, on the relevance of such illness to sentencing deliberations, is referred to with other authorities, including R v Wright (1997) 93 A Crim R 48 and R v Engert (1995) 84 A Crim R 67, in what appears to be the principal recent authority in this state on such relevance. That authority is F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125, from which I note [38] - [41], in the judgment of Steytler P, with whose judgment McLure and Miller JJA agreed:

A mental illness does not have to be the sole cause of the commission of a crime, or even a cause of the commission of the crime, in order to be relevant to sentencing: Benitez v The Queen [2006] NSWCCA 21; (2006) 160 A Crim R 166 [36]. In ... Engert ... 71, Gleeson CJ said:

In truth however ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.

It has long been held that, in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others: R v Letteri (Unreported, NSWCCA, 18 March 1992) (Gleeson CJ, Sheller JA & Badgery-Parker J) and the cases there cited.

In ... Tsiaras ... 400 the court (Charles & Callaway JJA & Vincent AJA) said that serious psychiatric illness not amounting to insanity is relevant to sentencing in at least the following five ways:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

In Wright ... 51, Hunt CJ at CL (with whom Hidden J agreed & Gleeson CJ generally agreed) said that, if an offender acts with knowledge of what he is doing and knowledge of the gravity of his actions, moderation of the consideration of general deterrence 'need not be great'.

34 I also note from R v Verdins [2007] VSCA 102; (2007) 16 VR 269 that the principles in Tsiaras may be applicable

in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness [5].

35 See also Krijestorac v The State of Western Australia [2010] WASCA 35 [18] (Wheeler JA), [1] (Owen JA) and [40] (Newnes JA).

36 The learned magistrate did not explore with the appellant or otherwise (as by reference to psychiatric reports) the relationship, if any, between the appellant's mental illness and the offending or the nature of that mental illness. Any such relationship and the nature of that illness may or may not have a significant effect on the importance to be attached to general deterrence in sentencing: see Wright 51 (Hunt CJ), referred to in F [41]; and see Fennell v Somerville [2009] WASC 214 [25], (Hall J). Any such relationship and the nature of that illness may or may not have a significant impact on the importance to be attached to special deterrence, and the need for the protection of the public: see Engert 71 (Gleeson CJ), as quoted in F [38].

37 The learned magistrate did attach significance to general and special deterrence in his sentencing, as indicated by his remarks (ts 5), after the prosecutor had indicated the importance as deserving an 'immediate sentence of imprisonment' of the character of the offending, as follows, which appears above but which I set out again for convenience:

HIS HONOUR: Yes. Well, it is not a case, as I have said, where you have not been convicted of similar assaults in the past, and I think I would be failing in my duty if I did not impose a penalty that is not only going to deter you but to be a deterrent to other people. You just cannot do this. You cannot use your bipolar as an excuse for this (indistinct).

38 In my view the learned magistrate by proceeding in the way I have described failed to properly address a relevant sentencing consideration to which the appellant had drawn to his attention. Thus I would uphold ground 2.

Ground 3: failure to consider whether to suspend the sentence

39 It is not in contest that at no point in his remarks during the sentencing hearing or when delivering his sentence did the learned magistrate expressly refer to the sentencing option of suspended imprisonment.

40 It is trite law that the learned magistrate, having determined that a sentence of imprisonment was the kind of punishment to be imposed, could not proceed to impose a sentence of immediate imprisonment without first having considered whether or not it was appropriate to suspend the sentence: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [12] - [13] (Gleeson CJ and Hayne J). In doing so he was called on to consider 'all the circumstances': Samuel v The State of Western Australia [2004] WASCA 154 [35] (Roberts-Smith J, with whose judgment Malcolm CJ and Murray J agreed).

41 It also appears to me to be equally well established that a sentencing judge's failure to refer to a sentencing option below immediate imprisonment in the hierarchy in Sentencing Act 1995 (WA) s 39(2), including suspended imprisonment, is not necessarily an indication that he or she has overlooked that option in non-compliance with s 39(3): see Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA) referring to Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998) 6 - 7 (Franklyn J, with whom Malcolm CJ and Ipp J agreed); and Samuel [31] - [32].

42 Whether or not the failure to refer to a suspended sentence is an indication that such an option was overlooked in my view depends on what was apparent to the learned magistrate as a result of the sentencing hearing. If it were 'readily apparent' that suspended imprisonment was not 'realistically open', then a failure to refer to it expressly would not be an error; however, where it was an option that was 'realistically open', then it would 'usually be necessary for the sentencing judge to make some reference to why the less severe option was not appropriate': Samuel [34].

43 It seems to me that I should infer the learned magistrate concluded the only realistic possibility on what he understood to be the circumstances of the offending and of the offender was a sentence of 'immediate imprisonment', as had been put to him by the prosecutor (ts 5). I should do this from the learned magistrate's statement following that submission, directed to the appellant, previously quoted (ts 5).

44 On what was apparent to the learned magistrate as a result of the sentencing hearing, I consider I should further infer from that statement in that context that he had considered but rejected as a realistic possibility a suspended sentence of imprisonment. Compare the inference drawn by Templeman J in Hill v Bodenham [2000] WASCA 37 [22] - [24], referring to Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Malcolm CJ).

45 I should note, however, that, as I have indicated, the learned magistrate appears to have assessed the circumstances of the offending without exploring with the appellant his dispute as to the character of the offending, in terms of the number of times he believed he had hit the bus driver, and the character of the offending as described by the prosecutor as deserving of an 'immediate imprisonment'.

46 Moreover, in reaching his sentencing determination, the learned magistrate appears to have assessed the circumstances of the appellant without exploring with him or otherwise his bipolar condition and its relationship if any with the offending, as well as the nature of that condition.

47 Had those explorations taken place, it may well have been that the learned magistrate would have had to consider suspended imprisonment as 'realistically open', and the second inference to which I referred would not have been reasonably open. However, in the absence of those explorations I do not consider that it has been shown that the learned magistrate failed to consider whether or not he should suspend the sentence of imprisonment.

49 Under ground 1 I referred to the appellant's challenges to the number of times it was put to him he had hit the bus driver, and to the prosecutor's characterisation of the offending. As I there indicated the learned magistrate appears not to have resolved those disputes.

50 The appellant also took exception to the appearance in his criminal record of an offence of assault on a public officer. When his Honour referred to the appellant's 'prior convictions' as including 'an assault public officer in September 2006', the appellant responded 'I've never hit a - hit a public officer before' (ts 4). After the learned magistrate replied 'Well, your record shows that', the following exchange ensued (ts 4), which appears above but which I set out again for convenience:

POWELL, MR: Well, that's wrong.

HIS HONOUR: But anyway, (indistinct) - - -

POWELL, MR: I've never hit a public officer before. I don't go around hitting people just for the sake of it.

HIS HONOUR: Well, I do not know what the circumstances of that were but (indistinct) - - -

51 The learned magistrate did not resolve this dispute.

52 The principles concerning the necessity to prove, the location of the burden of proof in respect of and the standard of proof for disputed matters in sentencing determinations are set out sufficiently for my purposes in Pas v The State of Western Australia [2009] WASCA 210 [90] - [98] (Buss JA, with whose judgment Owen and Wheeler JJA agreed), referring to other authorities notably R v Olbrich [1999] HCA 54; (1999) 199 CLR 270:

A number of propositions are well established as to the basis on which a trial judge must impose sentence where the offender has been convicted after a trial.

First, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process. The trial judge must sentence according to those facts, whatever his or her personal views may be about the verdict. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).

Secondly, the distinction between aggravating and mitigating circumstances, for sentencing purposes, may sometimes be unclear or even, on occasions, ambiguous. In Storey, Winneke P, Brooking and Hayne JJA and Southwell AJA said:

It may very well be that the descriptions of aggravating and mitigating circumstances will be useful shorthand expressions to refer to the distinction we draw. They are, however, no more than shorthand expressions. It would not be right to argue from the tag that is applied to the category of circumstances to some conclusion about whether a particular circumstance is or is not in one group rather than the other. Factors cannot be characterised as always aggravating or always mitigating. For example, the taking of drugs or alcohol will sometimes be put forward as a mitigating factor but it may, in a given case, be held to aggravate the crime. Good standing in the community will usually tend to mitigate but may tend to aggravate if it has been misused. One must always ask what the tendency of the circumstance is in the particular case under consideration. No doubt there will be cases in which the same facts can be seized on by both the Crown and the accused and described by one as an aggravating circumstance and the other as a mitigating circumstance. 'Aggravating' and 'mitigating' must be understood in a wide sense, and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) and on the other hand of a prior or subsequent conviction.

The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender (371).

I respectfully agree with these observations. In the balance of my reasons, I will use the terms 'aggravating circumstances or factors' and 'mitigating circumstances or factors' in the sense explained by the majority in Storey. The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case. See Langridge v The Queen (1996) 17 WAR 346, 367 (Kennedy J, Wallwork J agreeing).

Thirdly, if the prosecution seeks to have the trial judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring that matter to the judge's attention and, if necessary, call evidence about it. See ... Olbrich ... [25].

Fourthly, if the offender seeks to have the trial judge take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the judge's attention and, if necessary, call evidence about it. See Olbrich [25].

Fifthly, it will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstance, as the case may be, if the asserted matter is controverted by the other party or if the trial judge is not prepared to act on the assertion, even though it is not controverted by the other party. See Olbrich [25].

Sixthly, the trial judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution. See Hutchins v The State of Western Australia [2006] WASCA 258 [25] (McLure JA, Steytler P & Wheeler JA agreeing); Nguyen v The State of Western Australia [2009] WASCA 8 [20] (Steytler P); CJ v The State of Western Australia [2009] WASCA 42 [4] (McLure JA, Buss JA agreeing); The State of Western Australia v Wickham [2009] WASCA 137 [29] (Miller JA, Martin CJ & Buss JA agreeing). The giving of notice enables the offender to adduce evidence, for the purpose of establishing the mitigating circumstance, before sentence is imposed. See CJ [4].

Seventhly, the prosecution must establish an aggravating circumstance beyond reasonable doubt, but the offender is only required to prove a mitigating circumstance on the balance of probabilities. See Olbrich [27]; Storey, 369.

Eighthly, if the trial judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the trial judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing. See R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mullighan & Bleby JJ agreeing).

53 Each of the three matters that were disputed was in my view, if accepted contrary to the appellant's contention, capable of resulting in a more severe sentence than would otherwise be the case.

54 Each of the first two matters, but not the third, was, it seems to me, accepted by the learned magistrate contrary to the appellant's contention as matter likely to produce a more severe sentence that would otherwise be the case.

55 As to the first matter, that of the number of times the appellant hit the bus driver, the learned magistrate's acceptance, as matter likely to produce a more severe sentence than would otherwise be the case, that the appellant hit the bus driver the number of times (three) referred to in the prosecutor's statement of the circumstances of the offending, is apparent from the following. It is his response to the appellant's references to previous forms of abuse he said he had suffered (ts 6), which appears above but which I set out again for convenience:

HIS HONOUR: Well, those matters are not - those matters are not before me today. The matters that are - the matter that is before me is you assaulting a bus driver, in the way that has been described, and causing her injury. She should not (indistinct)

56 As to the second matter, that of the character of the offending as described by the prosecutor as 'two incidents' with 'time to cool down' between them (ts 5), the learned magistrate's acceptance, as matter likely to produce a more severe sentence than would otherwise have been the case, of the prosecutor's characterisation appears in my view in part from the following. It is what the learned magistrate said, immediately after the prosecutor described that character as that 'it deserves an immediate term of imprisonment', that 'You just cannot do this.' (ts 5). I also note the learned magistrate's response to the appellant saying 'I did make a mistake', saying 'that is not a good reason, and it is all right to be sorry in hindsight but there is an expectation that people control their behaviour' (ts 5, emphasis supplied). I further note the passage not long afterwards, in which the learned magistrate said 'the matter that is before me is you assaulting a bus driver, in the manner that has been described, and causing her injury' (ts 6, emphasis supplied).

57 As to the third matter, that of the appellant's criminal record as extending to a previous offence of assault on a public officer, whether or not the learned magistrate accepted the matter contrary to the appellant's contention as likely to produce a more severe sentence than would otherwise have been the case is not clear.

58 I have already quoted the language of the learned magistrate in which he acknowledged he did 'not know what the circumstances of that were' (ts 4). He had earlier referred to 'a conviction for a common assault in October 2006, and in January of this year common assault' (ts 4). He later said, as part of his response to the prosecutor's characterisation of the offending as deserving immediate imprisonment, that 'it is not a case, as I have said, where you have not been convicted of similar assaults in the past' (ts 5).

59 In my view the learned magistrate's last reference to the appellant's criminal record, in the context I have described, as likely as not indicates he was relying on all of the assaults in the appellant's criminal record he had referred to for their character as assaults, without regard to the entry for one of them as an assault on a public officer.

60 It seems to me that, from the third proposition read with the fifth in Pas at [93] and [95], respectively, that the learned magistrate was in error in sentencing the appellant, as it appeared he did, on the basis of an acceptance of the first and second matters contrary to the appellant's contention as likely to produce a more severe sentence than would otherwise be the case, at least without affording the appellant an opportunity to address those matters further.

62 I have recently described the principles applicable to a ground of this nature, in Sakkers v Thornton [2009] WASC 175 [50] - [52], referring to Furber v The Queen [2008] WASCA 233 among other authorities as follows:

A convenient general statement of those principles is in R v Tait and Bartley (1979) 24 ALR 473, 476 (Fed Ct, Full Ct, Brennan, Deane and Gallop JJ) as follows:

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336-40 at 339; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 15 ALR 1-17 at 15).

See also House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519 - 520 (Dixon, Evatt and McTiernan JJ).

In respect of the matter of a sentence 'so excessive or inadequate as to manifest such an error' (Tait 476), it is accepted that such a sentence is one that falls 'outside the range of a sound exercise of sentencing discretion': Furber [46] (Murray AJA); see also [1] (Buss JA) and [2] (Miller JA).

It did not appear there was any contest between the parties as to such a statement of the principles.

63 In determining whether or not a sentence is manifestly excessive the court should have regard to the maximum penalty for the offence, the standard of sentencing customarily observed in relation to it, the place which the offence occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); and see The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [107] (Buss JA, with whom it appears Owen, Wheeler, Pullin and Miller JJA agreed in this respect) on determining whether or not a sentence is manifestly inadequate.

64 I begin by noting that at the time of the offending in this case the maximum penalty on indictment for the offence against Code s 318 was, by s 318(1)(m), 7 years. I consider that it is the maximum penalty on indictment for an offence like that against Code s 318 which is the maximum penalty to which Chan directs me, and not the maximum summary conviction penalty, of imprisonment for 3 years and a fine of $36,000: see Evans v Vanderheide [2001] WASCA 352; (2001) 126 A Crim R 239 [19] (Miller J), referring to Johnson v Hayter [2001] WASCA 118 [10] (Miller J); compare Withnell v Walker [2005] WASCA 8 [13] (Miller J). No contrary submission was put to me.

65 Counsel for the appellant put to me that the manifest excessiveness was located particularly in the failure to suspend the sentence of imprisonment. Counsel did not contend that the learned magistrate in the sound exercise of his sentencing discretion could not have imposed a sentence of imprisonment. At the same time, counsel did not accept that a determination on a term of imprisonment of 12 months was within the sound exercise of sentencing discretion, although he did not press this as his principal submission.

66 Counsel for the appellant submitted that the sentence of imprisonment to be immediately served was manifestly excessive given not only the circumstances of the appellant's mental illness but also his voluntary attendance at the city detectives office and his participation in a record of interview, his plea of guilty at the first opportunity, and his apology to the bus driver for the offence and his offer to pay her hospital costs. All of these matters were made apparent to the learned magistrate: see ts 2 - 3 above.

67 There is a not insubstantial body of authority which has reviewed sentencings for offences under Code s 318.

68 There are ten cases listed in Quinn v The State of Western Australia [2006] WASCA 99 [19] (McLure JA, with whose judgment Roberts-Smith and Buss JJA agreed), as well as Quinn itself. All eleven cases were ones involving assaults committed in the period since 20 January 1995 when the maximum penalty on indictment for an offence contrary to s 318 was by Criminal Law Amendment Act 1994 (WA) s 8 increased from 5 to 10 years. All eleven involved assaults on police officers.

69 In respect of assaults on police officers under Code s 318, McLure JA said in Quinn [19] that

[t]he authorities endorse the principle that the safety of police officers lawfully carrying out their duties is a matter of prime importance and that the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence: Etheridge v The Queen [2004] WASCA 152.

70 I note that there was a further authority on sentencing for an offence under Code s 318 committed during the period referred to but not included in her Honour's list, Dodd v Hoogewerf [2002] WASCA 15. That case involved an assault on a prisons officer, where Miller J, as his Honour then was, treated the offence as serious by reference to the principle which her Honour later referred to in Quinn: see Dodd [11].

71 I should further note that none of the twelve authorities involved an offence under Code s 318 committed following the coming into force on 27 April 2008 of a change in the structure of the maximum penalty on indictment for an offence under that provision. By Criminal Law and Evidence Act 2008 (WA) s 9, that maximum penalty of 10 years was reserved for the cases described in s 318(1)(l), while the maximum penalty for all other cases (into which it appears the present case fell) was, as an effect of the introduction of s 318(1)(m), lowered to 7 years. That change had been made by the time of the offending in this case.

72 Counsel did not cite to me, and I have not been able to find, any authority considering the effect of that change on sentencing in a case falling within s 318(1)(m). Nor did they address me on the effect of that change. I return to this matter below.

73 The highest sentence imposed or not quashed in the 12 authorities, with the exception of Quinn itself, was 2 years following a plea of guilty in Hill, a pre-transitional period sentence equating to 16 months as a transitional period sentence. The highest transitional period sentences imposed or not quashed in those authorities, with the same exception, were of 12 months, including sentences for offences to which the offender who pleaded guilty was resentenced in Ashworth v The State of Western Australia [2006] WASCA 36, and a sentence for an offence to which the offender had pleaded guilty, a sentence which was not challenged in Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585. The exception was Quinn itself, where the offender who had been convicted following a trial was re-sentenced on appeal to the transitional period sentence of 2 years and 4 months.

74 The only cases of sentences for assaults on a bus driver that counsel were able to cite to me were appeals against sentences for offences under Code s 317, assaults occasioning bodily harm, as that provision read at the relevant time. The sentences were of 12 months each, for two co-offenders. On 12 November 1993 at about 12.15 am the two assaulted a male bus driver as the bus with 15 passengers was starting a run. The assault involved spraying the bus driver's face with the bus's fire extinguisher, a struggle with him, further spraying and finally the fire extinguisher being thrown at him. This last resulted in him receiving medical treatment including five stitches to his forehead. The co-offenders pleaded guilty, were aged 18 at the time of the offending and one had no prior convictions while the other had a conviction for disorderly conduct. Anderson J determined that the appeal against sentence would be allowed in both cases if the offenders would accept probation for 12 months with community service plus payment of $250 to the bus driver. See Rotham v Cox (Unreported, WASC, Library No 940069, 14 February 1994); and Sparrow v Cox (Unreported, WASC, Library No 940068, 14 February 1994).

75 It may immediately be noted again that the offence in each case was not against Code s 318 as it was at the relevant time, but against s 317. I note that the maximum penalty on indictment for the s 317 offence then was 5 years' imprisonment, which was the same maximum penalty on indictment as for the s 318 offence. However, the maximum penalty on indictment for the s 317 offence at the time of the offending in this case was 7 years, for an offence committed in circumstances of aggravation or circumstances of racial aggravation (none appear in this case), or 5 years otherwise, while the maximum penalty on indictment for the s 318 offence was, as has been seen, greater, 10 years or (for the offending in this case) 7 years.

76 Further, while it may be noted that the offence in this case was committed during the day, and there was no suggestion that the assault occurred while the bus was in motion, or that there were other passengers on the bus, at the same time the offenders in Sparrow and Rotham were both treated as young first offenders. Those matters were referred to by Anderson J in Rotham (8) as 'powerful inhibiting factors', his Honour adding (8) this was

especially so when, as in this case, the offenders are shown to be in regular employment, generally living responsibly within a responsible and stable family environment and showing genuine remorse for their conduct.

77 Except for the matter of remorse, none of the factors or the special matters referred to by his Honour appear to have been present in this case.

78 In my view, under the form of Code s 318 in force at the time of the offending in this case there is no reason to distinguish substantially between persons, such as police officers and others, 'merely performing a public duty in the community interest': see Dao v The Queen (Unreported, WASCA, Library No 990015, 22 January 1999) (12) (Murray J), obiter, dissenting, but not it seems on this point.

79 It was not in contest before me that the bus driver in this case was a 'public officer' (see Code s 1(1) 'public officer') who at the relevant time was 'performing a function of [her] office' within s 318(1)(d). I consider that I do not have to address the question whether the view I expressed in the preceding paragraph would have applied had the appellant been convicted, not under s 318(1)(d) but under s 318(1)(g)(iii). Nor do I consider I have to address the question whether or not the view I have just expressed would have applied had the form of s 318 in force from 22 September 2009 applied to this offending. On that date, by amendments to s 318 by Criminal Code Amendment Act 2009 (WA) s 5, minimum penalties of minimum terms of imprisonment were set for offences against certain classes of victims who had suffered bodily harm, by the introduction of s 318(4) and (5). None of those classes appears capable of including a bus driver.

80 Subject to the effect of the change in the maximum penalty made by Code s 318(1)(m), I consider then that I may be guided by the views expressed in Ashworth that sentences for deliberate assault on police officers acting in the execution of duty such as punching 'but not resulting in any particularly serious injury' would 'ordinarily' result in sentences of imprisonment before the transitional period provisions of 12 months to 2 years: [105], Roberts-Smith JA. Offences 'towards the upper end of the scale of seriousness' would 'generally' receive sentences of imprisonment between 18 months and 2 years: [136], McLure JA. The latter range equated to transitional period sentences of imprisonment of between 12 and 16 months. I have also noted Quinn [19] (McLure JA) where her Honour stated that 'the highest sentence imposed for a breach of s 318 is 12 months (18 months under the former sentencing regime)'. However, I also note that in one of the authorities she refers to in that paragraph, Hill, a pre-transitional period sentence of 2 years' immediate imprisonment was upheld.

81 Offences to which the accused pleaded guilty are included in the range of sentences to be immediately served, upheld, imposed or not challenged in the authorities referred to in Quinn [19]. See Ashworth (transitional period sentence of 12 months substituted on appeal) where the assault was during an extended attempt by the offender to escape arrest which required the use of pepper spray, and the police dog handler suffered cuts and abrasions from a fall during the struggle; the offender was 33; the plea was not a fast track one but at a very early stage; and the offender's record was not a bad one until a conviction for burglary, and included no custodial terms. See also Hill (pre-transitional period sentence of 2 years upheld) where the assault resulted in hospitalisation for unconsciousness but a complete recovery; the victim was the only police officer in the small community, and there was a prior good relationship with the offender; and the offender was 29, had no prior convictions for assaulting a public officer but did have prior convictions for assault, while not having been subjected to any custodial penalties. While neither of cases appears to have involved an offender with a mental illness, in neither case did the offender's criminal record appear to have been as serious as that of the appellant.

82 In that last respect I have considered the appellant's criminal record, which was provided to me after the hearing by counsel for the appellant without objection from counsel for the respondent. That record indicates that the appellant had the convictions for assault referred to by the learned magistrate (ts 4), for none of which, however, he received a custodial penalty.

83 As I previously indicated, the appellant also had a number of convictions for indecent assault or indecent dealing, for which he had in each case received a sentence of imprisonment, for terms between 1 month and 18 months. At the same time, I note that the most recent of those sentences, of 12 months, was imposed on 21 May 1993.

84 I must also note the change by way of reduction in the maximum penalty under Code s 318(1)(m) since the commission of the offences of the authorities I have referred to. As a matter of first principle, that reduction, of the order of 30%, would on its face be one to which effect in sentencing would need to be given by the courts: see the converse for increases in the maximum penalty of that order for the offence of burglary considered in Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [2] (Malcolm CJ) and [133] (Anderson J), referring to Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J). In my view that effect might be to lower by about the same proportion (30%) the bottom points and the top points of the ranges just referred to for offences falling within s 318(1)(m). However, the sentence in this case would not fall outside the range so described to any significant extent, although it would fall at the top of that range rather than towards the bottom of the range referred to in the authorities.

85 On balance, on the matters before the learned magistrate, I am unable to conclude in this case that a sentence of imprisonment of 12 months was manifestly excessive.

86 However, this does not address the matter of the learned magistrate not making the sentence one of suspended imprisonment.

87 In my view a sentence of immediate imprisonment was not manifestly excessive, on the matters before the learned magistrate. Given the seriousness of the assault, causing injuries requiring hospital treatment with five stitches, whether caused by two or three punches, and the appellant's criminal record, even allowing for the pattern of offending it disclosed where the serious offending appeared to have stopped after 1993 until the most recent offending, and whether or not that record was taken to include the assault on a public officer as other than an assault similar to the other ones to which the learned magistrate referred, the mitigating circumstances, including the plea of guilty which I accept as a fast track one, the apology and the offer of compensation, and including also for that purpose the appellant's mental illness, would not in my view clearly call for the sentence to be suspended. Compare the mitigating circumstances which did so call, in Dodd [18], where Miller J particularly emphasised the fact the offender had never previously been to prison and had a 'relatively minor record' as 'highly relevant', as was her age (22), the fact she was 3 1/2 months pregnant and had a 13-month-old child.

89 Counsel for the respondent put to me that Criminal Appeals Act 2004 (WA) (CA Act) s 14(2) (the proviso) applied in this case. That provision reads:

(2) Despite subsection (1)(b) [order to allow the appeal], even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

90 There is authority that the provision applies to sentencing appeals under pt 2 div 2 of the CA Act: Wallam v Dent [2008] WASC 170 (Jenkins J). Her Honour indicates the approach in such cases as follows [31] - [33]:

I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised.

However, not every case will be able to be so analysed. In Weiss v The Queen [2005] HCA 81; [2005] 224 CLR 300 [45] the High Court considered the meaning of a similar provision from Victoria in the context of an appeal against conviction. The provision said that the Court of Appeal may, notwithstanding that in its opinion that the point raised in the appeal might be decided in favour of the appellant may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The court said:

... no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

These principles can be extrapolated to an appeal against sentence to which the Criminal Appeals Act s 14(2) applied. There will be cases where it is appropriate to allow an appeal against sentence even though the sentence imposed by the magistrate was not excessive or greater than the appeal court would have imposed if sentencing the appellant at first instance. Those cases will be uncommon and as in the case of appeals against conviction it is not possible to articulate the criterion to identify the cases which will fall into this category.

91 I respectfully agree with those views, and in any event I should follow them unless I consider they are 'plainly wrong', which I do not. See Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358, (Finkelstein J) [22].

92 As I have indicated I have concluded that I should uphold the first, second and fourth grounds of appeal. The matters raised by those grounds all go to show the learned magistrate sentenced without the benefit at least of submissions for the appellant on matters which, if they had been properly explored, might have gone to cause the learned magistrate to arrive at a less severe sentencing disposition. I accept this is particularly the case in respect of the appellant's mental condition, although not limited to that matter.

93 At the hearing before me I was provided with a number of reports on the appellant prepared in each case by a consultant psychiatrist either alone or with a medical officer. Those reports were each in the form of a discharge summary, concerning discharge from an institution to which the appellant had been referred. They were dated, from the latest to the oldest, 2 December 2009 (for discharge on 23 November 2009); 26 March 2009 (for discharge on 16 May 2009); 28 November 2006 (for discharge on 18 October 2006); 22 August 2006 (for discharge on 19 July 2006); 24 April 2005 (for discharge on 17 February 2005); and 4 December 1992 (for discharge on 20 November 1992). They were all attachments to the affidavit sworn 15 February 2010 of Sandra Louise Bolter, principal solicitor and general manager of the Mental Health Law Centre. A solicitor in the employ of the Centre was solicitor for the appellant.

94 I consider I was able to receive the affidavit with its attachments under my power to admit evidence in an appeal in CA Act s 40(1)(e). No submission to the contrary was put to me. I consider it useful to indicate the basis for my reception of the evidence.

95 I consider that the discharge summaries prior to that of 2 December 2009 represent material that might have been put before the learned magistrate had the appellant been afforded the opportunity to obtain professional advice or assistance. The limitations on admitting such material, if I consider it to be 'new evidence', would in my view not obtain here, given the forensic disadvantage the appellant suffered. See DPJB v The State of Western Australia [2010] WASCA 12 [64] (Owen JA).

96 I consider that the discharge summary of 2 December 2009, which was for discharge after admission to the institution from custody serving the sentence of immediate imprisonment appealed from, and therefore would not have been available to be put before the learned magistrate, represents material that can be considered to determine whether or not the sentence the appellant received represented a miscarriage of justice, in the way 'fresh evidence' may be considered for the purpose of determining whether or not the conviction of an offender was a miscarriage of justice: DPJB [60] - [63].

97 The discharge summaries in question include references, in that of 16 March 2009, to a 'long history of paranoid schizophrenia'; in that of 28 November 2006, to the appellant's concern about 'disinhibited behaviour', apparently with respect to prior offending behaviour involving assaults on young girls, as well as in 1992 a prior diagnosis with paranoid schizophrenia; and in that of 22 August 2006, to a prior admission from Albany Prison with a diagnosis of paranoid schizophrenia, as well as to 'evidence of a psychotic process'.

98 I consider these references, together with the appellant's account of tiredness and awakening from sleep, had they been before a sentencing officer on 5 August 2009, lead me to lay less emphasis than the learned magistrate did on general deterrence. It is less clear whether or not I should place greater emphasis on personal deterrence and the protection of the community, such that in particular I ought to conclude suspending the term of imprisonment would not be appropriate.

99 This depends in part at least on how to assess the report in the discharge summary of 26 March 2009, under 'Management and Progress', as follows:

Brief containment in a secure ward (24 hours), recommenced on depot and mood stabiliser, then transferred to the open ward. He settled soon, and was mostly compliant with treatment and management on the ward. Upon discharge on a Community Treatment Order to his home address, he was pleasant and friendly, settled, with nil self harm/suicidal ideation, but with some residual grandiosity and residual longstanding delusions.

100 I also note from the discharge summary of 2 December 2009 the reference to the appellant's 'suffering sleep apnoea' for which he was referred to 'the sleep clinic for investigation and treatment', as well as the introduction Lithium, after which 'his mental state improved considerably', including that 'there was no evidence of any psychotic symptoms'. The concluding sentence to that discharge summary is that:

He was eventually discharged back to prison with recommendations that he continues on his current medication and he attends the sleep apnoea clinic.

101 There are in my view indications in those two discharge summaries, read together, that the appellant's mental condition might be managed, particularly by medication, at least if the appellant's sleep difficulties can also be treated. At the same time I must note that the present offending occurred between the dates of the two discharge summaries.

102 There is undoubted difficulty in considering the application of the proviso in a case such as this one, where the errors at first instance included the failure to afford a sufficient opportunity to a self-represented accused to obtain professional assistance which might have addressed matters relevant to sentencing, particularly the appellant's mental condition, as well as the failure to resolve a number of disputed matters of fact. However, it is my view that, for the purposes of the proviso, that difficulty should be resolved by assuming the errors would have been rectified in the ways most favourable to the appellant that are reasonably open on the material before me.

103 So approaching the matter, I do not consider I can be satisfied that no substantial miscarriage of justice has occurred.

104 This makes it unnecessary for me to consider whether the proviso could not apply in any event, because the matters that caused me to uphold grounds 1, 2 and 4 were such that it is appropriate to allow the appeal against sentence even although the sentence was 'not ... greater than the appeal court would have imposed if sentencing the appellant at first instance' (Wallam [33]).

105 On grounds 1, 2 and 4, I would allow the appeal and quash the appellant's sentence.

106 I understood the submission of counsel for the appellant to be that, in such an event, I should move to re-sentence the appellant immediately. For that purpose, as I understood his submission, I should take account of all the material in the discharge summaries, and of the fact the appellant had been in custody in relation to the offence at least since 5 August 2009, as well as that provision for his accommodation on his release in a suitable facility was available. Counsel's submission, as I understood it, was that I should reduce the term of the appellant's sentence of immediate imprisonment so that he could be immediately released, on the basis the purposes of sentencing have been accomplished. In the alternative, I should impose a suspended sentence of imprisonment.

107 I have concluded that it is appropriate I proceed to re-sentence the appellant. However, I consider that, without at the least submissions as to sentence from both counsel, which they have not yet had the opportunity to present to me, I am not in a position to arrive at a suitable substitute sentence. In my view it is necessary such submissions address at least the disputed matters of fact I have referred to, being the number of times the appellant struck the bus driver, the opportunity or lack of it for him to cool down in the bus and his criminal record, as well as the contents of the discharge summaries, for their implications for the factors of general deterrence, special deterrence and protection of the public in this case. Counsel should also address me on the effect on my re-sentencing of the change in the maximum penalty for the offence in Code s 318 made by s 318(1)(m).

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : POWELL -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 54 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

On re-sentencing, imprisonment for a term of 7 months, backdated to date commenced to serve sentence for offence which was set aside

Powell v The State of Western Australia [2010] WASC 54

1 SIMMONDS J: (This judgment is edited from the transcript). Mr Powell, I am re-sentencing you following the determination of your appeal against the sentence imposed by a magistrate on the one offence, namely an assault on a public officer, for which the re-sentencing as well as the original sentencing was conducted.

2 The offence was one against the Criminal Code (WA) (the Code) s 318. By the operation of amendments to the Code over the last few years up to the time of your offending, which was as I understand it 31 July 2009, the maximum penalty was one of 7 years' immediate imprisonment.

3 I can be relatively brief in my remarks in this supplementary judgment because there are, with the exceptions I will reach, no major differences between the circumstances both of the offending and of yourself that I describe in my judgment on the appeal, Powell v The State of Western Australia [2010] WASC 54.

4 The circumstances of the offending on 31 July 2009 were that you hit a bus driver when, as I understand it from the facts, the vehicle had been stopped following an earlier exchange between you and the bus driver about the bus driver's expression of difficulty with the fact that you were asleep. You awoke when she complained about this to you, and she then returned to the driver's seat and indicated that you should get off the bus.

5 The circumstances of the offending, I am satisfied on what I have been told by both counsel, involved you hitting the bus driver two or three times. I do not consider that it makes a significant difference to sentencing whether it was three or two. It is not in dispute that as a result of hitting the bus driver as you had done with a clenched fist, the bus driver suffered injuries, partly the result of the dark glasses she was wearing, that necessitated medical treatment including five stitches.

6 This was a significant assault. In sentencing you for this offence, as in my reasons on the appeal I had indicated, I must consider all the sentencing options realistically open to me. Having regard to the instruction in the sentencing legislation I may not use a more severe penalty unless it is not appropriate to resort to one of the less severe ones.

7 In sentencing you I have to have regard to the purposes of sentencing, which are: general deterrence, being deterrence of other persons, sometimes colloquially put as making an example of the offender; special deterrence, being deterring yourself; punishment; protection of the public; and rehabilitation. In all of this, it seems to me that I must particularly note the evidence before me as to your mental health condition at the time of the offending.

8 I am satisfied your mental health condition is one under which you have been labouring for some time. You described it to the magistrate as bipolar (ts 3). The evidence I have from psychiatrists and medical officers was put in terms of paranoid schizophrenia; regardless of its precise nature, the illness is such that you had been under treatment for it for some time. That treatment included medication and it was a change of medication on the relevant day, with the effects of that on that day, that, in my view, contributed, together with the underlying condition itself, to the offending.

9 The effect of that is that it is much less important to approach sentencing with a view to making an example of you by reference to general deterrence. At the same time, general deterrence is not entirely irrelevant. That is because it is not in dispute that you were aware that what you were doing was wrong; however, it is undoubtedly true that the level of control you had over your behaviour, the result of sleep deprivation and the underlying mental health issue, was such that general deterrence has the diminished role I have described.

10 At the same time I must take into account considerations of special deterrence and protection of the public. For that purpose I have carefully considered the medical reports that I have.

11 I have particularly noted the length of time you have been under treatment and the fact that this incident occurred after you had been released with some indication that your condition was under effective management. It is a concern that the offending occurred notwithstanding that. At the same time, however, I note that as a result of medical evaluation of you, while in prison under the sentence which I set aside in this matter as a result of the appeal, there have been rather more favourable indications, if I can put it that way, having to do with a change in drug regime to lithium and an indication that sleep apnoea clinic treatment is an option that you should attend to.

12 It was not suggested to me that you had not been attending to that sleep treatment regime. In my view, then, the importance I might otherwise have attached to special deterrence and protection of the public is significantly moderated, although not entirely eliminated. As your counsel properly conceded, given your history, it cannot be assumed that all risks have been eliminated; however, it seems to me that substantially the risks which matured on 31 July 2009 have been addressed, and addressed as a result of the period in custody that you have undergone under the prior sentence which I set aside.

13 In re-sentencing you I note your plea of guilty, which I accept was at the earliest opportunity, and for that you are entitled to significant credit. I have regard also to the signs of remorse that clearly emerge from the material before me, being the apology to the bus driver and your acceptance of responsibility which went beyond simply the plea of guilty but included an offer to the learned magistrate to pay hospitalisation costs for the bus driver (ts 4).

14 In imposing any sentence of imprisonment in relation to this offending it seems to me that a discount at least in the order of 30% is appropriate, and that would be the number upon which I would settle. The plea of guilty of course is relevant to considering all of the sentencing options that are realistically open in this case.

15 I have noted your personal circumstances otherwise.

17 Your criminal history was one in which there had been prior offences of assault including one for assault on a public officer, although for the most recent assaults you had not received sentences of imprisonment. You had received sentences of imprisonment for prior assaults of a different character described in my reasons for judgment in the appeal.

18 I have anxiously weighed all of this material in order to arrive at my sentencing disposition in this case. It seems to me that having reviewed all of the options realistically open (including ones of a community based order and an intensive supervision order character), the seriousness of what occurred here and the other factors that I have described, weighed with and in some cases against that seriousness, mean that only a sentence of imprisonment is appropriate.

19 I have had to weigh all of those factors again to see whether suspension of the term of imprisonment would be appropriate. It seems to me on balance, reviewing all of those matters, that it is a close question whether suspension is appropriate but on balance, in my view, suspension is not appropriate in this case.

20 That then takes me to the length of the term of imprisonment, a matter which precedes a determination of whether or not to suspend such a term. It seems to me that a sentence of 7 months' imprisonment is the appropriate disposition in this case.

21 I have noted in that regard the period of time you have already spent in custody. It seems to me that I can in the particular circumstances of this case, as well as having regard to the changes to the sentencing legislation in this state in relation to the abolition of the transition period, have regard to time spent in custody. However, it seems to me that I must make my determination primarily based upon all of the factors that I have previously described - that there is, in other words, no fixed reference point represented by the period that you happen to have served in custody while awaiting the disposition of this appeal as well as the period preceding the commencement of the appeal.

22 All of those matters having been weighed, in my view, a sentence of imprisonment of 7 months backdated to the date at which you entered into custody in relation to this offence is the appropriate period of time to apply. The calculation of that period so backdated may well mean - and I will hear from counsel on this subject - that you have now completed the term of that period and are entitled to immediate release.