File No : AR 4193 of 2008, AR 4194 of 2008

Criminal law and procedure - Sentence - Assault with intent to cause grievous bodily harm - Offender 18 years - Whether sentence should be suspended - Magistrate not viewing surveillance footage - Whether an error

1 McKECHNIE J: This is a prosecution appeal against the suspension of a sentence of imprisonment following conviction after pleas of guilty for assault with intent to do grievous bodily harm and being armed in a way that may cause fear. The respondent was sentenced as follows:

2 The facts, as accepted by the respondent, were at 3.00 am on 5 April 2008, the respondent and two other males (one adult, one juvenile) attended a 24-hour Gull service station in Armadale in pursuit of the complainant and his friend. The respondent was armed with a machete. The juvenile was armed with two tomahawks and the third male was armed with a machete and bricks. The complainant hid behind shelving inside the service station. The juvenile forced open the glass doors of the service station using the tomahawks.

3 The respondent and others entered the service station and pursued the complainant around the shop, wielding the weapons. As the complainant attempted to run out, the respondent caught him and struck him twice to the head area with the machete. The juvenile co-offender struck the complainant several times to the head and body with the tomahawks. The incident occurred in view of the service station console operator and was clearly captured on surveillance footage.

4 As a result of the attack, the complainant received 8 wounds to the rear of his head, exposing his skull. The injury resulted in loss of sensation to the complainant's left ear. He also suffered broken bones in his left hand and lacerations to his right hand and forearm. A CT scan revealed that the complainant had suffered skull fractures as a result of the attack.

5 The main ground of appeal is that the magistrate erred in ordering that the terms of imprisonment be suspended. A subsidiary ground of appeal is that he erred in failing to have regard to all of the evidence available to him and, in particular, the surveillance footage of the incident. I will deal with this ground first.

The learned Magistrate erred when he failed to have regard to all of the evidence available to him, in particular, the surveillance footage of the incident.

6 To decide on the proper sentence to be imposed, a court may inform itself in any way it thinks fit: Sentencing Act 1995 (WA) s 15.

7 In the trial court, the prosecution made a submission that the magistrate should refrain from dealing with the matter and remit it to the District Court: Criminal Code (WA) s 5(3)(a). Shortly, before a brief adjournment, the prosecutor said:

There is also a DVD that I would seek to show the court, which shows the accused and the co-accused and their acts on the victim, sir. (ts 16)

8 The submission was opposed and ultimately the magistrate concluded that he could deal with the matter within the range of sentences available to him. No appeal is brought against that decision. However, it is relevant. In relation to the application under Code s 5, the prosecutor said:

[W]hat I can show the court is a DVD of the incident, which will show and present the seriousness of the offence and thereby it should be dealt with on indictment. I have no further submissions after that has been played and the courts can view it. (ts 17)

9 There followed a discussion between the prosecutor and the magistrate about the construction of the Code s 5. The magistrate then ultimately indicated that he would deal with the s 5 application after he heard the statement of material facts. He received pleas of guilty from the respondent and the statement of facts was then read. The following exchange then took place:

PROSECUTOR: ... Perhaps if the court can view the DVD of the incident, which will show the extent to what - - -'

HIS HONOUR: Well, I have actually heard it. It seems - I mean, I don't know what else that can show me. (ts 22)

10 Discussion then moved on to other topics. After hearing from counsel for the respondent, the magistrate, after reciting the facts, said that the limits on the jurisdiction did not hinder the court appropriately dealing with the respondent and refused the application. He invited counsel for the respondent to make a plea in mitigation advising them:

[T]hat I have come to the conclusion that a term of imprisonment is the only option, however, it may be that I could be persuaded, perhaps further than that. I really am in a situation where it's not really negotiable now after what I have heard, and a term of imprisonment. (ts 28).

11 At the conclusion of counsel's submissions, the magistrate invited the prosecutor to make submissions, which he did.

12 It is not clear whether the magistrate was specifically requested and declined to take the DVD into account in deciding on the proper sentence. He was certainly asked and declined to take it into account in relation to the s 5 application and it may be the prosecutor thought that the magistrate had precluded the tender of the DVD.

13 At the request of the prosecution, and with the consent of the respondent, I have viewed the DVD. Obviously, it gives graphic visual content to the words in the statement of material facts. It does not display actions or events beyond the statement. The magistrate obviously, and correctly, regarded the whole incident as extremely serious.

14 In normal circumstances, of course, a judicial officer when sentencing will likely have regard to any matter which the parties wish to put before the court and after viewing or considering it, will ascribe to the material such weight as is thought fit. In the present case, having regard to the way in which the DVD was sought to be introduced, the clear appreciation by the magistrate of the seriousness of the offence, and my conclusion following viewing it, I am not persuaded that the magistrate erred in failing to view the DVD. Accordingly, this ground is dismissed.

15 The appellant contends that the suspension of the sentence was an error because of the seriousness of the offending.

16 The error in the suspension of the sentence is particularised:

(a) Failed to adequately reflect the seriousness of the offending;

(b) Failed to adequately punish the offender;

(c) Failed to adequately reflect the need for specific and general deterrence;

(d) Was in the circumstances, so inadequate as to manifest error.

17 The only issue is the suspension of the sentence. The actual sentences of imprisonment were clearly appropriate and within range.

18 The magistrate did not explain why he suspended the sentence. Having imposed the sentence with parole eligibility and explaining why he was making an order for parole eligibility, he simply remarked:

I have come to the conclusion I can suspend that sentence for two years. (ts 36)

19 It is necessary then to delve more deeply into the facts and the respondent's antecedents.

20 As a result of the incident, the victim was quite severely injured. Although it may be accepted that some of the more serious injuries occurred when he was struck with the tomahawks, this avails little on behalf of the respondent. He was one of a group of three who were all armed, two, including the respondent, with a dangerous weapon. He intended to do grievous bodily harm and was a full participant in the sustained assault.

21 The assault arose out of feuding between two families. The respondent had been attacked at the Gosnells train station three days earlier in relation to the feud. Feuding is a current scourge on indigenous communities so that elements of general deterrence loom strongly in sentencing.

22 The respondent was barely 18. He has a bad juvenile record. Of particular relevance are convictions on 1 August 2007 for carrying an article with intent to cause fear, possessing a controlled weapon and unlawful wounding, each of which occurred at different times. He lives in Melbourne but returned to Western Australia to see his girlfriend. On the night of the incident, he went to the Ruby Room where he drank too much and took some ecstasy tablets. He claimed that his memory of the events was patchy. He had been working prior to the incident and had spent 10 weeks in custody at the time prior to sentence.

23 A number of references were provided to the magistrate. Two references dealt with the respondent's parents and therefore have little relevance. The letters to the magistrate from the respondent's father were very helpful and detailed some of the steps, including moving away from the state, that have been undertaken in order to distance the respondent from the negative influence of peers. He details the support that is available to him in Victoria and his interest in football is also the subject of another reference.

24 There is a natural caution to interfering with the discretionary judgment of a trial court in respect of sentence, particularly in the case of a prosecution appeal. There are many examples in the cases why that is so, see for example, Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

25 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gleeson CJ and Hayne J said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case. [6]

26 As Dinsdale reminds all courts: 'Only if satisfied that it is not appropriate to impose a term of suspended imprisonment, may the judge impose a term of imprisonment which is to take effect immediately'. Kirby J said (footnotes omitted):

As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried. [59]

27 Although the court will not lightly interfere with the sentencing discretion, it is bound to do so if the sentencing discretion has miscarried.

28 In the present case, the suspension of the sentence has resulted in a manifestly inadequate disposition. Although account had to be taken of the respondent's youth, and other personal factors, the gravity of the offence outweighed those matters to such a degree that a sentence of imprisonment to be served immediately was the only appropriate disposition. The assault in which the respondent took an enthusiastic part involved a sustained and cowardly attack by three persons, armed with weapons, against a man who had unsuccessfully sought shelter within the service station. The fact that the assault took place against a background of feuding aggravated, not mitigated, the offence and all the circumstances of the offence required a clear message of general deterrence. The respondent's recent criminal history, albeit as a juvenile, also required a sentence of personal deterrence. The error made by the magistrate was to fail to give appropriate weight to these factors.

29 I have been made aware of the respondent's history since conviction, the fact that he has moved to Melbourne and taken up employment. I am aware, as was the magistrate, of the references in respect of him and his family's support. The factors which have arisen since sentence, together with those available to the magistrate, do not outweigh the need for general and particular deterrence.

30 In the course of preparing these reasons for decision I had my Associate write to the parties as follows:

In the course of considering the appeal, his Honour has noted that the sentences for the two offences which, would appear to arise out of the same course of conduct, were ordered to be served cumulatively. There is no cross-appeal on this matter but nevertheless his Honour thought he should draw it to the attention of the parties. If either party wishes to make submissions on the matter they may do so within 7 days of receipt of this letter.

31 I received submissions from the respondent but not from the appellant. The respondent did not seek to cross-appeal. In R v Faithfull [2004] WASCA 39, McLure J (Malcolm CJ and Wheeler J agreeing), conducted an analysis of the one transaction rule concluding at [28]. Had I been the sentencing magistrate, I would have exercised my discretion differently and regarded the whole proceedings as one continuing transaction requiring a concurrent sentence. However, there is no cross-appeal to this effect. Moreover, in all the circumstances, it cannot be said that the magistrate's discretion to accumulate the sentence fundamentally miscarried.

32 The appeal is allowed and the order for suspension of sentence set aside.