Court of Appeal (WA)|2003-11-26|Before: Anderson J

Richardson v Mulhall [2003] WASCA 283 (26 November 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RICHARDSON -v- MULHALL [2003] WASCA 283

Complaint No PE 10526 of 2003 in the Court of Petty Sessions at Perth

Criminal law - Sentencing - Assault occasioning bodily harm - Male aged 19 with poor record including one previous similar offence - Early plea of guilty and good indications of remorse and rehabilitation - Sentence of 12 months' imprisonment not set aside as excessive - Order that sentence be immediately served set aside and in lieu thereof sentence suspended for 2 years

Bates v Wheatley [2000] WASCA 38

Canale v Bayens [2001] WASCA 383

Cinanni v Commissioner of Police (WA) (1993) 18 MVR 327

Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509

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

Duncan v The Queen (1983) 47 ALR 746

Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652

Holland v The Queen [1999] WASCA 43

Kilner v The Queen [1999] WASCA 189

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

Mical v Ward [2003] WASCA 149

Mishal v The Queen [2001] WASCA 328

R v Chilvers [2003] WASCA 87

R v Liddington (1997) 18 WAR 394

R v Osenkowski (1982) 30 SASR 212

R v Thomsen & Owen (1998) 105 A Crim R 150

Rowlands v Caporn [2001] WASCA 66

Verschuren v The Queen (1996) 17 WAR 467

1 ANDERSON J: The applicant was charged in the Court of Petty Sessions at Perth that on 18 January 2003 at Scarborough he unlawfully assaulted Ezra Shae Munro and thereby did him bodily harm, contrary to the provisions of s 317(1) of the Criminal Code. That section provides a maximum penalty of imprisonment of 5 years for the offence, but on summary conviction the maximum is 2 years' imprisonment or a fine of $8,000.

2 The applicant elected to be dealt with summarily and was dealt with in the Court of Petty Sessions at Perth on 7 August 2003. He had previously pleaded guilty to the offence, that plea having been entered at the earliest opportunity. He first appeared before Mr Heaney SM on 10 July when submissions in mitigation of sentence were made on his behalf during which it was submitted that a sentence other than a term of imprisonment was appropriate. In response to that submission the Magistrate decided to order a pre-sentence report and adjourned the matter to 7 August to enable that report to be prepared and presented. When the matter resumed on that day the Magistrate requested that the statement of material facts be read again and invited counsel for the applicant to repeat his submissions in mitigation which counsel did. The Magistrate then passed a sentence of 12 months' imprisonment to be immediately served, giving oral reasons for arriving at that punishment.

3 On 9 September 2003 the applicant was granted leave to appeal. The grounds of appeal were essentially that the Magistrate erred in that he failed to give sufficient consideration to alternative sentencing options, failed to provide adequate reasons as to why no other form of punishment or disposition than immediate imprisonment was appropriate, failed to give sufficient weight to the early plea of guilty and, having determined that a pre-sentence report should be obtained and having obtained a pre-sentence report which was favourable to the appellant he failed to act on it, without giving reasons for so doing.

4 This is not exactly how the grounds of appeal are expressed but it is I think the essence of them.

5 The facts of the case were outlined to the Magistrate by the prosecutor in the following term:

"PROSECUTOR: At 1.30 am on 18 January 2003 the accused was at the Lookout Bar in Scarborough. He was involved in an altercation with the complainant over a spilt beverage. As a result the complainant and the accused were evicted from the premises. Outside the accused again approached the complainant with the intention of engaging him in a physical altercation. Police intervened in the matter and the pair were separated without further incident.

About 3.00 am that morning, the accused was in company with three other males and attended the Scarborough Pizza Shop on Scarborough Beach Road. There the accused saw the complainant walking on the footpath about 30 metres away, eating a pizza as he walked. The accused walked quickly towards the complainant and without warning struck him twice to the right side of the face with a clenched right fist. As a result of the blows the complainant fell forward, landing on the ground. The accused again struck him to the face approximately six times with a right clenched fist. The accused also kicked the complainant in the upper torso area.

The accused then ran from the scene before being driven off in a friend's vehicle. At no stage did the complainant retaliate against the accused and he appeared to be unconscious before he hit the ground. The force of the blows caused the complainant to bleed profusely from his face, so much so that the accused's clothes were covered in blood and had to be disposed of. At no stage did the accused check on the welfare of the complainant nor did he contact anyone for medical attention."

6 No doubt because the appellant indicated at the first opportunity that he intended to plead guilty no witness statements were obtained. There is no statement from the complainant nor has the complainant supplied a victim impact statement. There is no indication as to the severity of the injuries received by the complainant other than the information that may be gleaned from the statement of material facts. All that may be inferred from the statement of material facts is that the first two blows were sufficient to incapacitate the complainant to the extent of rendering him "apparently" unconscious and that the attack caused the complainant to "bleed profusely from his face".

7 The Magistrate obviously considered that the level of criminality involved in this attack was high. After hearing the plea in mitigation and after restating some of the material facts his Worship said:

"That is a very serious assault, it is an assault that calls for a prison sentence. It was an unprovoked cowardly attack involving punching to the head, knocking someone unconscious then when the person is on the ground he is continued to be beaten, then while still on the ground the boots go in. That sort of assault is just not -- is just intolerable in this country."

8 His Worship then referred to the appellant's previous record and continued:

"I have just acknowledged the act that you have a previous record, including a previous record for assault occasioning bodily harm less than 12 months before. I have read the pre-sentence report, I read your references, but I don't think any of them overcome the fact that this assault was so serious that it has to be dealt with by way of a prison sentence. So in this matter, and I don't think it's appropriate for that sentence to be suspended. So in this matter you will be sentenced to 12 months' imprisonment eligible for parole."

9 I entirely agree with his Worship that the offending was so serious as to deserve a prison sentence. In my opinion, the learned Magistrate's description of the nature of the assault as an unprovoked cowardly attack was fully justified. Whilst it is true that the maximum penalty which the Magistrate was authorised to impose was 2 years' imprisonment it would be a misconception to approach the case on the basis that that was the maximum penalty for the offence. The maximum penalty is 5 years' imprisonment. The limit of 2 years applicable in the Court of Petty Sessions on summary conviction is a jurisdictional limit only. Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993; Casserly v The Queen, unreported; SCt of WA; Library No 990164; 31 March 1999; Johnson v Hayter [2001] WASCA 118 per Miller J at par [10].

10 I am not able to accept the submission made on behalf of the appellant that the seriousness of this offence did not warrant a sentence of imprisonment for a period of 12 months. In my opinion, that sentence was well within a sound discretionary judgment.

11 The real question in the appeal is whether sufficient attention was given to those matters pointing to a suspension of the sentence.

12 At the time the offence was committed the appellant was of the age of 19 years. He does not have a good record. There are a number of offences on his record which are cause for some concern including a quite recent conviction on 23 April 2002 of assault occasioning bodily harm. In September 2001 the appellant received community based orders for 9 months for the offences of burglary of a habitation and being on the curtilage of premises without lawful excuse and at the same time he was ordered to perform 100 hours of community work. These community based orders were breached subsequently by traffic offences so he was re-sentenced on the earlier offences and sentenced to 4 months' imprisonment suspended for 12 months in respect to the burglary offence and it was ordered that his community based order continue in respect to the offence of being unlawfully on premises. In September 2002 he was sentenced to 4 months' imprisonment for driving offences and he was disqualified from driving for a period of 6 months. In November 2002 he was fined $250 for being on the curtilage of premises without lawful excuse and on 2 May 2003 he was fined $100 for possessing a smoking implement.

13 All in all therefore between September 2001 and May 2003 he was convicted of a total of 11 offences, some of which were quite serious and one of which was an offence involving violence.

14 It can therefore be seen that when he came before the Court of Petty Sessions in respect to the offence with which this Court is now concerned he was certainly a candidate for imprisonment with the sentence to be immediately served.

15 There are other matters however which must be taken into account and they are these. In the first place he is still a relatively young man. His record of convictions indicates that his offending behaviour, worrying though it is, is confined to quite a short period - less than 2 years, pointing to the possibility that perhaps he had temporarily lost his way during his late teens. There is an indication, too, in the pre-sentence material that his offending behaviour was associated with abuse of alcohol and perhaps also of drugs but the important point is that one cannot yet say, I do not think, that his anti-social attitudes have become entrenched. All of that is perhaps rather speculative and it could be put to one side if there was an absence of recent indications of remorse and a desire to turn over a new leaf. I think those indications are present. I have mentioned that the appellant did indicate an intention to plead guilty at the earliest opportunity. Furthermore, as appears from the pre-sentence report and from the appellant's affidavit, he has decided to confront his problems with alcohol and drugs and his lack of anger management skills by undertaking on his own initiative courses which are designed to assist with such problems. In the pre-sentence report it is recorded that as at that date (7 March 2003) he was "half way through an eight week anger management programme run by Relationships Australia". I am informed by his counsel that he has now completed that course. The references which have been produced on his behalf include a letter from "Holyoake" run by the Australian Institute for Alcohol and Drug Addiction Resolutions that the appellant has presented at that institution and commenced the Holyoake's men's programme which is a programme offering participants "a positive way of dealing with their use of alcohol, drugs or other dependent behaviours" to quote from the letter. The appellant's counsel, Ms Lonsdale, informed the Court that he was continuing with that programme. The Court was also informed that the appellant had offered to attend a victim/offender mediation session with the complainant through the proper channels with a view to formally apologising to the complainant through the mediation facilities. An attempt was made to engage the complainant in this process but the complainant declined.

16 The entry into the Holyoake programme occurred after his appearance in the Court of Petty Sessions and obviously therefore it was not a matter which the learned Magistrate could take into account. Furthermore, since he was sentenced, the applicant has succeeded in obtaining employment with Richgro Garden Products in Canning Vale where he works four days a week. He is engaged for one day each week performing community work under court order. He has returned to live at home.

17 The appellant therefore now presents as a young man who for two years during his late teens went off the rails but who in recent times has made concerted efforts to change his lifestyle. I think it can fairly be said of him that he is well on the way to rehabilitation, on the face of it.

18 There are one or two other matters which I think may be taken into account by this Court should the Court decide to re-sentence the appellant. Although the appellant is presently on bail he has spent a total of 31 days in remand custody. Secondly, there is no material before the Court which would indicate that the complainant, Mr Munro, required any medical treatment following the assault or that he now suffers any ill-effects. Whilst it appears that he may have been rendered briefly unconscious by the attack there is no suggestion in the material that there are any long lasting sequelae.

19 This is perhaps only by good fortune but still it is the fact that the Court is not dealing with a case in which the assault has occasioned any enduring injury.

20 In the end and with the greatest respect, I think that his Worship did fail to give these matters the weight which should have been accorded to them before deciding to sentence a young man to a term of imprisonment to be immediately served, especially in light of the pre-sentence report which the Magistrate had called for and which, on any view of it, was favourable. I would refer in particular to the following passage in that report:

"Mr Richardson is a 20 year old single male who has had a positive and supportive upbringing, however, a high level of family mobility during this period has disrupted the development of positive peer relationships. Other factors that contribute to his offending behaviour appear to be problematic drug and alcohol use, negative peers and a lack of anger management skills. Mr Richardson recognises that these factors have had a negative impact on his lifestyle and he has responded positively in addressing these issues. To his credit, Mr Richardson has completed a professional facilitated anger management course and stated he has recently established a social network of positive peers.

Mr Richardson presents as remorseful for his offences and appears to be an intelligent man, who is willing to participate in victim offender reparative mediation and engage in interventions suitable to address substance use and anger management problems."

21 I think that if proper weight had been given to all of these matters it would have been seen to be a case for suspension of sentence.

22 Therefore, whilst I would uphold the sentence of 12 months' imprisonment I would set aside the order that it be immediately served and order instead that the sentence be suspended for a period of 2 years.

Richardson v Mulhall [2003] WASCA 283

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Richardson v Mulhall [2003] WASCA 283 (26 November 2003)

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Cases Cited (12)