Court of Appeal (WA)|2004-07-29|Before: Jenkins J

Smejlis v Matthews [2004] WASCA 158 (29 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SMEJLIS -v- MATTHEWS [2004] WASCA 158

MATTER : Justices Act 1902

File Number : JO 4885, JO 4886, JO 4887 & JO 4888 of 2003

Criminal law - Appeal from decision of Magistrate - Conviction and sentence - Assault occasioning bodily harm - Inferences available from evidence - Meaning of "procure" - Definition of "bodily harm" - Immediate sentence of imprisonment for youthful first offender

Attorney General's Reference [1975] EWCA Crim 1; [1975] 1 QB 773

Chamberlain v The Queen [No 2] [1984] HCA 7; (1983) 153 CLR 521

Cramer v The Queen, unreported; CCA SCt of WA; Library No 980620; 28 October 1998

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

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Lloyd v Faraone [1989] WAR 154

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Pettit v Dunkley [1971] 1 NSWLR 376

R v Castiglione [1963] NSWR 1

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Scatchard v The Queen (1987) 27 A Crim R 136

Smith v The Queen (1992) 7 WAR 527

Carlson v The King (1947) 64 WN (NSW) 65

Garrett v Nicholson [1999] WASCA 32

Harvey v Matthews [1999] WASCA 58

Lam v Beesley (1992) 7 WAR 88

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

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

1 This is an appeal from the decision of a Stipendiary Magistrate sitting in the Court of Petty Sessions at Joondalup on 11 March 2004. On that date, on complaints numbered JO 4885 - JO 4888 of 2003, being four charges of assault occasioning bodily harm, the Magistrate convicted the appellant and sentenced him to an aggregate of 18 months' imprisonment, with an order for parole eligibility.

2 The grounds of appeal against conviction and sentence are as follows:

(i) in failing to direct himself adequately on the standard and burden of proof.

(ii) by drawing the inference that the Applicant had procured others to commit the offence of assault occasioning bodily harm without adequately directing himself on the circumstances in which an adverse inference could be drawn against the Applicant.

(iii) by drawing the inference that the applicant had procured others to commit the offence of assault occasioning bodily harm when the circumstances giving rise to the existence of such an inference could equally have given rise to the existence of a rational hypothesis consistent with the Applicant's innocence.

(iv) by failing to give adequate reasons for finding that the Applicant had procured others to commit the offence

(i) in finding that the Applicant had punched Melissa Gay Goodwell (sic) in the face thereby causing her bodily harm without giving adequate reasons as to why he made such a finding and because, in any event such a finding was against the weight of evidence

(ii) in finding that the Applicant had assaulted Jason John Lammas with a weapon without giving adequate reasons as to why he made such a finding and when such a finding was against the weight of the evidence.

(iii) in sentencing the Applicant to a term of 18 months imprisonment when he should have imposed either a community based order or a suspended term of imprisonment.

PARTICULARS

A. The Learned Magistrate failed to give any or sufficient weight to:

i. The Applicant's good record.

ii. The Applicant's work history.

iii. The Applicant's antecedents.

B. Prior to determining that an immediate term of imprisonment was appropriate the Learned Magistrate ought to have obtained a comprehensive Pre-Sentence Report.

C. The Learned Magistrate erred in deciding general deterrence was the foremost consideration in determining the appropriate penalty.

(c) The Learned Magistrate erred in sentencing the Applicant to 6 months imprisonment cumulative in respect to the charge of assaulting Melissa Gay Goodwell (sic) and thereby doing her bodily harm as each of the charges arose out of the same incident and ought to have attracted a concurrent sentence."

3 Each complaint alleges that on 24 April 2003 the appellant unlawfully assaulted a complainant and thereby did that complainant bodily harm, contrary to the Criminal Code, s 317(1). The complainant in each charge is a different person. Complaint No JO 4885 relates to the complainant Melisa Gay Goodwill ("Goodwill"), complaint No JO 4886 relates to Jason John Lammas, complaint No JO4887 to Benjamin John Ellefsen ("Ellefsen") and complaint No JO 4888 to Keith Henry McKinlay ("McKinlay").

4 At the commencement of the hearing the respondent's case was that the appellant either procured the commission of each offence (Criminal Code, s 7(d)) or that he and others had formed an unlawful common purpose to assault the complainants with weapons and in the prosecution of such purpose these offences were committed and they were of such a nature that their commission was a probable consequence of the prosecution of the unlawful common purpose (Criminal Code, s 8).

5 The appellant pleaded not guilty on 19 January 2004. The trial took three days and the Magistrate reserved his decision. On 11 March 2004 the Magistrate convicted the appellant of each offence and imposed the following sentences:

Complaint No JO 4885 of 2003 - 6 months' imprisonment cumulative;

Complaint No JO 4886 of 2003 - 12 months' imprisonment concurrent;

Complaint No JO 4887 of 2003 - 6 months' imprisonment concurrent; and

Complaint No JO 4888 of 2003 - 12 months' imprisonment concurrent.

(a) The appellant was the ex-boyfriend of Goodwill who on 24 April 2003 was at her home in Girrawheen having a few drinks with six friends in the front garden. Apart from the complainants they were Laura Lammas, Michelle Devlin and Andrew McKinlay. All seven persons gave evidence for the prosecution.

(b) During the evening the appellant telephoned Goodwill on three occasions. On the first occasion he spoke to Goodwill and on the other two occasions he spoke with Jason Lammas who told him to "Fuck off".

(c) Approximately half an hour later the appellant drove to Goodwill's house with his headlights off and parked around the corner from the house.

(d) The appellant and three or four others then entered the front garden of Goodwill's home whereupon each complainant was assaulted with a weapon causing them bodily harm.

(e) The appellant did not assault either Ellefsen or McKinlay causing them bodily injury. Ellefsen and the appellant fought but no injury was caused as a result of that fight.

(f) The appellant entered the garden of the house in an aggressive manner and punched Goodwill in the jaw causing bruising. Later he struck Jason Lammas with a pole.

(g) Goodwill was also struck a couple of times with a bat on the head by someone other than the appellant when she went to assist Ellefsen.

(h) Jason Lammas whilst fighting a man with a shopping trolley handle was struck to the head from behind and then kicked while on the ground.

(j) Ellefsen was struck by a number of people with bats.

(k) After the assaults, the appellant and his friends left. The following morning Goodwill received a SMS from the appellant which said, in part, "how was your night's sleep? I slept the best ever ..."

(l) As a consequence of the assaults Goodwill had a bruise and swelling over different areas of her scalp and a bruise on her face. Jason Lammas had a lacerated scalp which was secured with six metal staples, and multiple bruises and abrasions to his upper body. Ellefsen had bruising to his lower back, right flank, right knee and back of his head. He had two areas of swelling on the back of his head and a 1.5 cm superficial laceration of his left forehead which was closed with glue. McKinlay had a 6 cm laceration of his left forehead, a 1.5 cm laceration on the back of his head and small superficial lacerations on his left forearm. Both head lacerations were sutured. He also had swelling and bruising around his left eye, left forehead and back of his head.

(a) As of April 2003 he was a social friend of Goodwill and had previously been her boyfriend. He was also seeing another girlfriend.

(b) On 24 April 2003 at 8.30 he telephoned Goodwill from his mobile phone whilst at soccer training and asked her if she wanted to come to his house. She told him she was drunk and had visitors. He said he would call her back later.

(c) Upon arrival at his home the appellant was advised that Goodwill had rung and he returned the call. When he telephoned Goodwill a male answered the phone and told him to "Fuck off" and threatened him. The appellant called back and he was again told to "Fuck off".

(d) Following the phone calls the appellant drove to Goodwill's house. On the way he was hailed down by friends Tom, Matthew and James Gosling. He did a U-turn to pick them up. They wanted to go for a drive with him. He drove them to their house to collect alcohol and then continued to Goodwill's home. He intended to socialise with them later that evening. On the way he told his friends about the phone calls.

(e) Upon arrival the appellant parked his car nearby and walked to Goodwill's house. The appellant had no weapon. He requested Tom Gosling to accompany him and Matthew and James Gosling to remain in the vehicle. The appellant had no intention of fighting or causing injury to anyone.

(f) Whilst walking with Tom Gosling to the house he saw that Tom Gosling had a piece of metal and told him to put it away.

(g) Upon arrival at Goodwill's house he entered the front yard and approached Goodwill who was standing on the front lawn he asked her "What's going on?" and she walked away.

(h) The appellant was then approached in a threatening manner by a man and after hearing shouting behind him he and this man pushed each other and then fought. The man got the better of the appellant and pulled his shirt over his head. When he was released the appellant saw one person hit another with a pole and then saw Goodwill run between them and also get hit with a pole. He grabbed her by the waist and pulled her away.

(i) The appellant saw that one of the people who was fighting when Goodwill got hit was on the ground. He yelled "let's get out of here" and left. The appellant and others then left.

8 In his reasons for decision the Magistrate said that for the prosecution to succeed in respect to the four charges it had to establish that the appellant procured others to assault the four victims and cause them bodily harm or that s 8 of the Criminal Code may apply in respect to unlawful purpose and probable consequence. The Magistrate also stated that if Laura Lammas' evidence of the appellant using a weapon to assault Jason Lammas was accepted then the defendant could be guilty of directly assisting in that assault. The Magistrate further stated that the appellant could be guilty of assaulting Goodwill and doing her bodily harm directly if it was found that the appellant punched Goodwill and that that punch caused bodily harm even though the injury sustained from that punch was not the subject of a medical report.

9 The learned Magistrate summarised the prosecution case and then went on to make the findings of fact. After making the findings of fact he then considered the appellant's evidence. He gave reasons why he rejected it. The Magistrate concluded the appellant was guilty on the basis that he had procured others to commit the four offences and further that the appellant punched Goodwill in the face and caused her bodily harm and joined in the physical assault upon Jason Lammas. He decided that the Criminal Code, s 8 was inapplicable.

10 An appeal from a decision of Magistrate sitting as a court of petty sessions will not be allowed unless an error has been made by the Magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or, that the proceedings were fundamentally flawed: Smith v The Queen (1992) 7 WAR 527. There must be shown to be a link between any error made by the Magistrate and the conviction recorded or sentence imposed on the appellant.

Ground (a)(i) - Standard and Burden of Proof

11 The appellant submitted that the Magistrate did not properly direct himself as to the standard and burden of proof. The standard and burden of proof is not in dispute. The respondent had the onus of proving the guilt of the appellant. For the respondent to discharge its burden of proving the guilt of the appellant it was required to prove beyond reasonable doubt that he was guilty of a particular offence with which he had been charged by establishing each of the elements of the charge to that standard.

12 At the conclusion of his reasons the Magistrate found that the "prosecution have established the case beyond reasonable doubt". Earlier in his reasons he said that "the prosecution need to establish that the [appellant] procured others to assault the 4 victims and cause them bodily harm, or that s 8 may apply in respect to unlawful purpose and probable consequence". In his reasons he said that he had "no doubt whatsoever that the [appellant] procured the others ... to come with him to Melissa's place and the purpose was to go there, confront, assault and harm people who were there". After rejecting the appellant's evidence he found "[t]here's clear evidence ... to the requisite standard that the [appellant] procured others to join with him, to come to Melissa's place with a view to assaulting and harming the people there with weapons. I've got no doubt about that".

13 The appellant submitted that whilst the Magistrate mouthed the correct words, his reasons showed that he did not apply them. Having considered the Magistrate's reasons as a whole, and the above passages in particular, the appellant has failed to satisfy me that the Magistrate erred by misdirecting himself on the burden and standard of proof. The Magistrate's reasons clearly show that he was aware of the standard and burden of proof and I have no reason to doubt that he conscientiously applied the relevant principles.

14 At one point in his reasons, when he was assessing the appellant's evidence, the Magistrate said:

"After soccer(?) the [appellant] went home and said that Melissa called his house and that his parents answered it. However there's no evidence from his parents to that effect."

15 The appellant submitted that this comment indicated that the Magistrate had reversed the burden of proof. I do not accept that a passing comment to the effect that the appellant's evidence stands alone on a particular point can be elevated to a reversal of the burden of proof.

Ground (a)(ii) - Inadequate Directions on Drawing Inferences

16 The appellant submitted that, as there was no direct evidence that the appellant had procured others to commit these offences, the Magistrate was obliged to direct himself that, he could only draw an inference that the appellant had procured the offences if he had excluded any other rational hypothesis consistent with innocence: Chamberlain v The Queen [No 2] [1984] HCA 7; (1983) 153 CLR 521 per Mason CJ at 536.

17 Whilst the Magistrate did not expressly direct himself in these terms I am satisfied that he was aware of, and directed himself on, the relevant principle. This is because, after finding that he had "no doubt whatsoever that the [appellant] procured the others ... to come with him to Melissa's place and the purpose was to go there, confront, assault and harm people who were there", he immediately went on to say: "It is the only reasonable inference open from what happened on the particular night". This sentence discloses that the Magistrate found that the conclusion as to the appellant's guilt was the only reasonable inference open on the facts.

18 A conclusion by a Magistrate that guilt is the only reasonable inference open on the facts as he has found them carries the necessary inference that, in his opinion, there is no rational hypothesis that was consistent with innocence. That the Magistrate does not expressly say this does not lead to an inference that he failed to direct himself on what is a very well known principle of law.

Ground (a)(iii) - Reasonable Inferences Consistent with the Appellant's Innocence

19 The appellant submitted that there were at least three rational hypotheses inconsistent with the appellant's guilt. These were:

1. The appellant's attendance at Goodwill's house was to find out why he had been abused on the telephone;

2. The appellant wished to ensure that Goodwill was safe; and

3. The appellant wished to visit Goodwill for social reasons.

20 The appellant submitted that the Magistrate's reasons did not deal with any of these considerations.

21 There was evidence from the appellant to support the first of the above hypotheses. The appellant gave evidence that he intended to go and see Goodwill and ask her "what was all that about?", presumably "that" being the series of phone calls he had had with her and other occupants of her house. He said he walked up to her and said "What's going on".

22 In the light of this evidence I do not believe it was appropriate for the Magistrate to speculate about other legitimate reasons for the appellant to go to the house. I also note in respect to the second suggested hypothesis that it is not supported by the evidence of the appellant or the respondent's witnesses. As to the third hypothesis, if the appellant's evidence was accepted, earlier in the evening he had been intending to socialise with the complainant Goodwill but this intention was overtaken by his desire to investigate the reasons for the abuse and threats he allegedly received over the phone. An intention at the time he went to Goodwill's house, to socialise with Goodwill also appears to be inconsistent with his evidence that afterwards he intended to "hang out" with the boys in his car.

23 The Magistrate rejected the appellant's explanation for going to see Goodwill. He found that the appellant's evidence as a whole was "unconvincing" and that much of his evidence was "nothing short of preposterous". In relation to this issue of why the appellant went to Goodwill's property he said:

"The question has to be asked, 'Why would you go and see [Goodwill] after all these events?' Threats have been made to him, according to his own evidence, and then what he says, that some people he knows hail him down. He just takes them along for whatever purpose.

What would be the purpose of going to see his ex-girlfriend, when according to his evidence, 'Oh they said, "Well we'll just come for a ride with you"'? It seems rather unlikely in the extreme that they would bother to go for a ride with him to see his ex-girlfriend just for a chat. That seems to be what his evidence amounts to.

When he got there, he didn't stop out the front of the place. He stopped away from the house, because he said he was a bit wary about the threats. So why did he take others with him? Because, among other things, he said, 'I don't like to fight.' The shopping trolley man, on the evidence of Jason [Lammas] - and I accept his evidence in that regard - was a big man, a lot bigger than the defendant. And the shopping trolley man was the man with the shopping trolley handle in his hand, who used it among other things to assault Jason [Lammas].

The [appellant's] evidence is that on the way to the house, when they were walking to the house, the shopping trolley man produces the pole, hits them - - hits it on some metal and the [appellant] says, 'Don't be silly. Put that away.' But doesn't stop, just carries on walking with this other large man who's got a weapon in his hand, and the [appellant] just marches on. He says - - the [appellant] says he only asked this person Tom to come with him, who's a big man, and the others to stay in the car. It seems very unbelievable.

He says when he's out the front, he didn't yell at [Goodwill] from the road. He went to the lawn past Jason [Lammas] and said to [Goodwill] in a pleading action, 'What's going on,' raising his hand to about his waist and pleading with her, arms held out. He says he didn't hit [Goodwill]. In that regard, [Goodwill] must be lying, Laura [Lammas] must be lying."

24 After referring to various other parts of the appellant's evidence that he found to be implausible, the Magistrate found the prosecution witnesses to be truthful and the appellant not to be. It is implicit in his reasons that he rejected the appellant's explanation for his visit to Goodwill's house on the basis that it was not rational, credible or consistent with other facts found proved. On the other hand he accepted the prosecution witnesses as truthful and, generally, reliable. He found that the only inference to draw from that evidence was that the appellant had procured the commission of the offences.

25 The Magistrate was entitled to accept or reject the evidence of various witnesses, including that of the appellant. The Magistrate's findings of fact must stand unless it can be shown that he "failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable": Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 per McHugh J at 447-448. There was ample evidence upon which the Magistrate was entitled to rely in order to conclude that the appellant was guilty of the offences. The reasons given by the Magistrate for the rejection of the appellant's evidence were rational and supported by evidence. Consequently they were findings open to him.

26 The Magistrate was only obliged to consider the appellant's explanation for his visit to Goodwill's property. I am satisfied that he did consider it and that he rejected it, as he was entitled to do.

Ground (a)(iv) - Failure to give Adequate Reasons for Finding that the Appellant had Procured others to Commit the Offences

27 The appellant submitted that the Magistrate was obliged to identify the primary facts and then consider whether they proved that the appellant had procured the commission of these offences. In doing this he was obliged to consider whether there was a rational hypothesis consistent with innocence. If so, he was obliged to dismiss the charges. He submitted that the Magistrate failed to identify the facts relevant to the drawing of the inference that the appellant had procured the commission of the offences and that the Magistrate's reasons did not disclose his reasoning process.

28 The respondent did not dispute these principles but rather submitted that the Magistrate's reasons satisfied the obligations upon him. This, the respondent said, is particularly having regard to the fact that this was a summary trial and Magistrates can not be expected to give voluminous reasons for each of their decisions.

29 The appellant relied upon Lloyd v Faraone [1989] WAR 154 per Malcolm CJ at 163. That case was an appeal from a District Court judgment, Malcolm CJ quoted with apparent approval the comments of Moffitt P in Pettit v Dunkley [1971] 1 NSWLR 376 at 387-388 where he said:

"... there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have. Just as an express statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordon CJ quoted (supra) recognise that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have."

30 In Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 at 438, Owen J considered the adequacy of the reasons given by a Magistrate for a sentence imposed upon an offender. He said:

"The respondent contends that the relatively brief reasons for sentence by the learned magistrate should be read in light of the prosecuting statement of facts, the plea of mitigation made by counsel for the appellant and the pressures within which the Court of Petty Sessions operates. I have no difficulty in accepting that contention. I am also fully aware and have taken into account the pressures under which the Court of Petty Sessions operates. The magistrates must deal with a large number of matters. The same degree of thoroughness and depth in giving reasons could not be expected in those circumstances as might be the case in some other courts where additional time for consideration and preparation is available."

31 I consider those comments to be apposite to this case, even though the Magistrate reserved his decision for some time.

32 I have already dealt with the sufficiency of the Magistrate's reasons for rejecting the appellant's explanation as to why he went to Goodwill's property with his friends. Upon rejecting this explanation the onus was on the Magistrate to turn to the respondent's evidence and determine whether this was sufficient to prove the appellant's guilt.

33 After reviewing that evidence the Magistrate said:

"So therefore the prosecution evidence involves seven eye witnesses of sorts giving evidence of violence on that particular night. In my view, there's no physical reason such as assault or injuries suffered to consider that Laura Lammas, Michelle Devlin or [McKinlay] were mistaken in what they saw and what was said. The victims saw things, but the sequence of what may have happened is not fully accurate, and that's understandable, bearing in mind what did happen.

I make the following findings of fact. [Goodwill] and the [appellant] had been in a sexual relationship, but that wasn't the case on the 24th of April. At that date, the [appellant] had a girlfriend, a Miss Alger, and even on his own evidence, spent the night at her place after the incident. The [appellant] had been calling in at [Goodwill's] place before the 24th of April and at that time - - for some of that time at least [she] was in a relationship, a new relationship with Jason Lammas, and had been for a few weeks before the 24th of April.

On the particular night, the defendant rang [Goodwill] and when [Goodwill] told him who was there and they were having some drinks, he made a comment about Laura [Lammas], calling her - - or referring to her as a 'fucking bitch' when the [appellant] said they were having some drinks.

[Goodwill] and Laura [Lammas] were at the house first. Others came and the last to arrive were [Ellefsen] and Michelle. The people there, the seven of them, were drinking and socialising outside the front of the house generally. Before [McKinlay] and Andrew arrived, Laura Lammas is certain that she saw a Commodore on Allison Drive, and was sure it was the car which came back later and was driven by the [appellant]. I find as a fact that that's what she saw and I accept her evidence that it was his car.

Next, there was - - among other things, there was a telephone call made to the house by the [appellant], and [Goodwill] didn't answer. A male answered and among other things, told the [appellant] to 'fuck off'. The phone call was taken by Jason [Lammas] and it was Jason [Lammas] who told the [appellant] to fuck off, among other things, and not to bother [Goodwill], that she didn't want to speak to him. Later on, there was another phone call with a repeat performance, when Jason [Lammas] answered the phone and told the [appellant] to fuck off again.

Some time after, not a very long time after the second phone call made by the [appellant], after he'd been told to fuck off on the second occasion by Jason Lammas, he drove his car into Allison Drive and pulled up. He didn't pull up outside [Goodwill's] house. He pulled up in a nearby street and before he pulled up, he turned the lights off. And once someone recognised his car, the words were spoken by one of the people at the gathering to the effect, 'Simon's here.'

Then the [appellant] was seen, and I accept that he was leading others down the road and outside the premises was yelling out loudly, 'I want to see my fucking girlfriend.' The [appellant] was first onto the driveway, demanding to see [Goodwill]. Jason [Lammas] was standing on the driveway and was in the way of a male who happened to be with the [appellant], and Jason [Lammas] said words to the effect to the male, 'What are you doing here?'

This other man had bourbon in his left hand, and this other man tried to hit Jason [Lammas] with a - - what Jason [Lammas] describes as a shopping trolley pole. The other man had his right hand in his pocket, and pulled the pole out of his pocket and went to hit Jason [Lammas]. After Jason [Lammas] fended off the first blow, Jason [Lammas] was set upon by that man and others from various directions, and Jason's evidence was that as the people approached, there was a total of five that came on the property - - or came to the property.

Some time after that, the [appellant] confronted [Goodwill], punched her in the face. She fell to the ground. That was after Laura [Lammas] told the [appellant] to leave her, that is [Goodwill], alone. Laura [Lammas] saw the blow and [Goodwill] felt it and also saw it.

[Ellefsen] and the [appellant] had some form of physical confrontation, with [Ellefsen] having the better of the [appellant], who went to the ground. Another three males, apart from the [appellant] and the male with the shopping trolley pole, some of them were beating up [McKinlay] with weapons, some of them turned on [Ellefsen]. [Goodwill] was hit twice by weapons, trying to help [Ellefsen]. Laura [Lammas] was running around screaming.

At one stage, Laura - - Laura [Lammas] said, and I accept her evidence, that the [appellant] hit Jason [Lammas] with a weapon, which looked like a pole. [McKinlay] was badly beaten up. [Ellefsen] couldn't get up. Jason [Lammas] went away and went inside, threw the mobile phone to [Goodwill], to ring the police and the ambulance. Laura [Lammas] came a little bit later, knocking on the front door. Then Jason [Lammas] went outside again, and by that time the [appellant] and his associates had gone.

A number of weapons involved were- - it would appear to have included the shopping trolley pole, a broomstick handle and other weapons, but I find as a fact that there were certainly more than two weapons used by the people who engaged in these assaults. It's difficult to be precise about how - - what the number was, but there was at least two and there were more than two.

The [appellant] had arrived in his car in Allison Drive with four males, and led them onto [Goodwill's] property. Some of them had weapons. He knew that beforehand. He came to confront [Goodwill] and others, to assault and harm people at the house. After the [appellant] had been told to fuck off twice, he arrived, he was angry and loud, shouting, 'I want to see my fucking girlfriend.' I have no doubt whatsoever that the [appellant] procured the others, four others, to come with him to [Goodwill's] place and the purpose was to go there, confront, assault and harm the people who were there. It is the only reasonable inference open from what happened on that particular night."

34 I have quoted the whole of this lengthy excerpt as, in my opinion, it sets out the Magistrate's findings of facts from which he drew the inference that the appellant had procured the commission of these offences. Whilst these reasons are not perfect they adequately set out the Magistrate's primary findings of fact. The appellant complains that whilst the Magistrate may have been entitled to draw this inference he was obliged to explain how he arrived at it. In my opinion he has adequately done so.

35 Specific complaint was made that the Magistrate failed to reconcile his finding that the appellant procured others to commit these offences with weapons but did not arm himself. Whilst the Magistrate's reasons may have been more complete if they had particularly referred to this issue, it does not appear to me that a finding in this regard was an essential link in his chain of reasoning. The Magistrate's findings were that the appellant was demanding to see Goodwill and that he went up to her and punched her in the face. He then had a fight with Ellefsen. Whilst this was going on the Magistrate found that other fights were occurring. It was unnecessary for the Magistrate to specifically consider why the appellant was unarmed. The fact that he was unarmed is entirely consistent with the Magistrate's decision, given that the Magistrate found that the appellant's co-offenders were armed, used their arms and the appellant was abusive and violent.

36 The appellant also complains that given the meaning of the term "procure" the Magistrate had to find that there was some agreement between the appellant and his co-offenders that they would carry out his wishes.

37 To "procure" means to produce by endeavour, for example by asking or demanding. You procure an offence by setting out to see that it happens and taking the appropriate steps to produce that happening: R v Castiglione [1963] NSWR 1. Evidence of agreement or discussion as to the form which the offence should take is not necessary: Attorney General's Reference [1975] EWCA Crim 1; [1975] 1 QB 773 per Lord Widgery at 777.

38 The Magistrate was entitled to find that the only reasonable inference open on the facts as he found them was that the appellant had procured the commission of these offences. The appellant had disagreements over the telephone with the people at [Goodwill's] house in which they had threatened him and made it clear he was not welcome at her home. These calls established the motive for the offences. They also established that it was unlikely that the appellant went to Goodwill's home for legitimate reasons. Despite this, and knowing that he may be going into a volatile situation, the appellant decided to visit the home late at night. He had to do a U-turn to pick up his friends and on his way to the home he told his friends of the dispute. When he got to the house he parked some way away. He admitted being aware that one of his friends was armed with a shopping trolley bar. Not unnaturally, the Magistrate could not understand how he could also fail to be aware that his other friends were also armed. The appellant approached the house demanding to see Goodwill in a loud and aggressive manner. His three friends accompanied him to the house, and almost immediately the appellant and his friends commenced assaulting the occupants. After they had inflicted various injuries they left without making any enquiries about the well being of the complainants. The following day the appellant sent Goodwill a SMS message which was only consistent with him being well pleased with the previous night's events. On these facts the Magistrate was entitled to find that the only reasonable inference to draw was that the appellant had procured the commission of the offences.

Ground (b)(i) - Offence against Melissa Goodwill

39 The Magistrate found that appellant had directly assaulted Melissa Goodwill and caused her bodily harm. There was evidence to support this finding. Goodwill gave the following evidence:

"Yes?---Okay. By the time I got to the middle of my lawn, close to my driveway, Simon had reached me.

So by the time you got to the middle of the where, the lawn?---The lawn. Directly in the middle of the driveway, Simon had reached me, and was in front of me, angry, swearing- -

Just a minute. 'In front of me'?---Yes.

He was angry, swearing?---Mm. Yes. He was close up to my face - -

HIS WORSHIP: Yes?---- - - saying something along the lines - excuse my language - of, 'What the fuck's going on?'

So he said, 'What the fuck's going on'?---Yeah. Yes.

Yes?---Okay. I saw how aggressive he was. I just put my head straight down, I did not say anything back to him.

Just a minute. Yes?---I had my head down and I proceeded just to kind of walk around him to try and get out of his face. Laura was down with me at this time and she was telling Simon to leave me alone. Okay. He got into front of me and he punched me in the left-hand side of my face.

Punched you where?---The left cheek, here.

Yes?---Okay. At that time I actually fell to the ground."

"If I can just take you back to the punch in your face, can you describe that punch and what effect it had on you?---When he punched me on the left side of the face, he was quite close to me when he hit, so I did have a bruise and - - on my face.

...

but as far as the punch and - - ?---Okay. I didn't expect - - I'm not sure what you mean. I didn't expect to be punched. I was punched on the left-hand side, right here, this is where I had bruising, and I was knocked to the ground.

All right. When did the bruising come out?---the next day, it lasted for about three days."

41 In cross-examination Goodwill said she had not told the doctor about this injury because she was concussed and concerned about her more serious injuries. Goodwill's evidence as to the assault was supported by another prosecution witness, Laura Lammas who testified:

"Right. And so you saw those guys running up the road, and what happened then?---Then I went in between Melissa and Simon and I started, like, 'So get out of her face.' I was saying, 'Get out of her face.' And then he pushed me to the side.

Mm hm. Who pushed you to the side?---Simon pushed me to the side.

Okay. Yep. What happened then?---And then Simon was in her face and just with a fist punched her in the face - on the left side of the face.

Do you know what fist did it?---Pardon?

Which fist?---I don't know.

Okay?---Just to the left side of her face.

Punched on the left side of the face. And what did Melissa do when she got hit?---She dropped to the ground.

How hard was the hit?---Well, hard enough to drop to the ground."

42 The appellant denied the assault but as I have already detailed the Magistrate rejected the truthfulness and reliability of his evidence.

43 No other prosecution witness saw the punch and the medical report tendered in evidence did not disclose that Goodwill complained of any such assault or any injury resulting from the punch.

44 The Magistrate found that the appellant punched Goodwill and that she had bruising for a few days.

45 The appellant makes two complaints about these findings. The first is that the Magistrate failed to explain the reasons for his findings. The second is that bruising for a few days does not constitute bodily harm.

46 In respect to the first complaint, the Magistrate dealt with this allegation at a couple of places in his reasons. First he noted that the evidence of Goodwill and that it was supported by Laura Lammas. He noted that, if Goodwill's evidence was accepted, the evidence was sufficient to prove bodily harm even though it had not been reported to the doctor.

47 In respect to Goodwill's evidence in general the Magistrate found that given her injuries and the trauma she sustained "some of her attention to detail" was "not fully accurate". He later referred to one of these inaccuracies as being a matter of detail.

48 In relation to differences between the accounts given by the prosecution witnesses, the Magistrate said that it was not surprising that there were such differences because some were badly injured and in respect to all of them they had snapshots of "a chaotic, brutal and frightening scene". However he found that there was no physical reason to consider that Laura Lammas and other uninjured people were mistaken in what they saw and what was said. He then went on to make his findings.

49 There was clearly evidence to support the Magistrate's finding that the appellant had assaulted Goodwill. I do not agree with the appellant that the finding was against the weight of the evidence. The fact that other witnesses did not see the punch was clearly not a determinative factor for the Magistrate because, as he explained it, each witness only had a snapshot of what occurred on the evening. I consider that the Magistrate adequately explained his reasons for accepting the evidence of Goodwill, supported as it was by, what he found to be, the credible evidence of Laura Lammas.

50 That leaves the question as to whether the Magistrate was entitled to find that a bruise which lasted for three days amounted to bodily harm.

51 The term "bodily harm" is defined in the Criminal Code, s.1 to mean any bodily injury which interferes with health or comfort. The meaning of the term was considered in Scatchard v The Queen (1987) 27 A Crim R 136. At 137 Burt CJ said:

"It is not necessary for the purposes of this appeal to attempt a definition of 'bodily injury'. It is, I think, enough to say that to apply force to another which 'hurts' in the sense of producing a sensation of pain is not of itself and without more to do that person a 'bodily injury' and without such an injury the sensation of pain cannot of itself and without more satisfy the definition of 'bodily harm'."

"Mr Murray for the Crown argued that, in this case, the injury was the pain. The difficulty which he faced, however, was that he was unable to identify the bodily injury which is required to satisfy the definition, that being an element in addition to an interference with comfort. In effect his submission was that the pain was at once the bodily injury and the interference with comfort. But this cannot be so.

No doubt a physiologist could explain the process by which the pain was perceived by Mr Johns and on that evidence it is, perhaps, conceivable that a bodily injury might be capable of identification; but there was, in my view, no evidence which justified the jury in this case in concluding that there was a bodily injury. It is not legitimate to progress from the evidence that the application of the headlock 'hurt' to the conclusion that there was therefore 'a hurt', in the sense of a wound or an injury, and then to equate that with 'a bodily injury'. A hurt may well constitute a bodily injury; but a person who has been hurt does not necessarily and invariably sustain a bodily injury. Pain is a perception activated by a stimulus which does not necessarily originate in a bodily injury."

"To establish the existence of bodily harm as defined, two matters must be made out, the first being the existence of 'bodily injury' and the second being the fact that such established bodily injury interfered with health or comfort."

54 The facts of the present case are that Goodwill's evidence established a bodily injury, that is a bruise, but there was no express evidence that the bruise interfered with her health or comfort. In my opinion it does not necessarily follow that a bruise interferes with health. Whether a bruise interferes with health because it is an adverse change to the soundness of the body will depend upon the evidence given at the trial. I can also readily contemplate situations where a person receives a bruise but it does not hurt or interfere with the recipients comfort. Thus in cases of bruising there must be some direct or circumstantial evidence to support a finding that the bruise interfered with health or comfort. By this I am not suggesting that the evidence must be of a particularly technical or sophisticated nature. For example it may be from a medical practitioner who gives an opinion as to the effect of the bruise on health or it may be from the recipient who gives evidence about the nature of the bruise and its effect: Cramer v The Queen, unreported; CCA SCt of WA; Library No 980620; 28 October 1998, is an example of a case where there was sufficient circumstantial evidence to establish the existence of bodily harm.

55 The evidence in this case fell short of being sufficient to establish that the bruise to Goodwill's face interfered with her health or comfort. The bruise lasted for only three days and Goodwill did not give a physical description of it or describe its effect on her. There was no medical evidence relating to this bruise. In my opinion that evidence is incapable of sustaining a finding that she suffered bodily harm.

56 The respondent submitted that if I should come to this opinion I should apply Justices Act 1902 (WA), s 199(1)(b) which states that a court hearing an appeal from a decision of a Justice may, amongst other things:

"Dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred."

57 In my opinion I should apply this provision. The Magistrate found that not only did the appellant assault Goodwill but that she was also assaulted with a pole by another person. There was uncontroverted medical evidence that she received injuries to her scalp which constituted bodily harm. The Magistrate found that there had been "a clear case established ... with respect to procuring, and there's also the direct assaults I've just mentioned". One of these direct assaults was that upon Goodwill. It is clear that the Magistrate found that the assaults by others in his party upon the four complainants were procured by the appellant. If he had not been satisfied that Goodwill had received bodily harm as a consequence of the appellant assaulting her, there is no doubt that the Magistrate would have found the appellant guilty of the charge relating to her on the basis that he procured the assaults on her by others. Indeed, that is the basis upon which the prosecution presented its case. Consequently I see no reason why I should not dismiss the appeal in relation to this charge, even though I consider that the Magistrate was wrong to find that the assault by the appellant caused her bodily harm.

Ground (b)(ii) - Offence against Jason Lammas

58 This ground complains that the Magistrate failed to give adequate reasons for finding that Jason Lammas was assaulted with a weapon and secondly that such a finding was against the weight of the evidence.

59 The Magistrate found that the appellant "joined in a physical assault with a weapon on Jason, as seen by Laura".

61 Jason Lammas gave evidence that as the appellant and his friends came onto the driveway he approached them. He walked past the appellant because he did not have a weapon and walked up to the next person who was holding a shopping trolley handle. He was assaulted with the handle as he tried to take it away from the other person. He managed to get hold of the handle and was going to hit that person with it when he was hit from behind over his head and other parts of his body. He did not see who hit him. He managed to get up and he ran into the house. He was bleeding from where he had been hit. A short time later he went back outside and found a broomstick handle near the driveway where he had been assaulted. Later he went to hospital and was found to have a laceration on his scalp, which required staples, and multiple bruises and abrasions. Photos were tendered which showed some of these injures to be longitudinal in shape.

62 Laura Lammas gave evidence that she saw the appellant punch Goodwill and she then saw him hit Jason Lammas with a pole which she said was about 60 cms in length. In examination in chief she said that she did not see exactly what it looked like or what colour it was. She said that after the incident the appellant walked away "down the street" and stood at the "bottom of the corner" where she called out to him. Still under examination-in-chief, she was asked whether she knew the colour of the pole that hit Jason. She replied, "When I was down there I didn't see [the appellant] with the pole".

63 In cross-examination Laura Lammas maintained her story that although she did not see the appellant arrive with a weapon, she saw him later with a pole and saw him hit Jason Lammas with it.

64 The appellant pointed to her evidence that "When I was down there I didn't see [the appellant] with the pole" and says that this is inconsistent with her testimony that the appellant hit Jason Lammas with a pole. Having regard to all her evidence it is obvious that when Laura Lammas gave that particular answer she was referring to when she saw the appellant down the street. This must also be how the appellant's counsel at trial understood her evidence because in cross-examination it was assumed that her evidence was that the appellant had hit Jason Lammas with a pole. There was no cross-examination directed towards establishing that she had said anything in examination in chief that was contrary to this position.

65 As I have previously detailed the Magistrate accepted Laura Lammas as a reliable witness. He was entitled to rely upon her evidence to find that the appellant hit Jason Lammas as she said he did.

66 The appellant submitted that the finding was against the weight of the evidence. I do not accept that this was the case. Although no witness suggested that the appellant arrived or left the scene with a weapon, there was opportunity for him to obtain one whilst he was there. For example Jason Lammas said he took the shopping trolley handle from another person but the only inference to draw from his evidence is that he subsequently lost possession of it. It is possible that the appellant picked this item up and used it assault Jason Lammas.

67 None of the other prosecution witnesses saw the appellant hit Jason Lammas with a pole but neither did they deny that it could have occurred. The appellant submitted that the finding was inconsistent with the evidence of Goodwill. However Goodwill did not say that the assault did not or could not have occurred. She testified that after she was punched by the appellant she went to the ground and when she got up she saw somebody hitting someone on the ground with what looked to be a bat. When she approached she saw that it was Ellefsen on the ground. She was then hit on the head and as a result may have lost consciousness for a short time. Not surprisingly, the Magistrate found that her recollection of the events of the night were affected by the assaults she received. The evidence of Goodwill is neutral on this issue.

68 The appellant submitted that the finding was also inconsistent with the evidence of Ellefsen. Like Goodwill, Ellefsen did not say that the assault did not or could not have occurred. He testified that he saw Jason Lammas standing in front of a man with a shopping trolley pole or something like that. He said he was then rushed by another man and pushed to the ground and punched. The Magistrate found the appellant to be the other man. He punched back before managing to get up and run to where he saw McKinlay being assaulted. Given the findings of the Magistrate about the nature of the incident and the "snapshot" evidence of each witness it is not surprising that the Magistrate did not find the absence of other evidence of much weight in deciding whether this assault occurred.

69 Although the actual ground of appeal does not complain that the conviction of the appellant for assaulting Jason Lammas was unsafe and unsatisfactory, the appellant's written submissions refer to that concept. A conviction may be set aside as unsafe and unsatisfactory notwithstanding that there was evidence upon which a defendant could have been convicted. The test to be applied is to ask whether the Magistrate, acting reasonably, must have entertained a sufficient doubt to have entitled the defendant to a dismissal of the complaint? In order to answer this question the appellate court must make an independent assessment of the evidence. However, it is not sufficient that the appellate court disagrees with the Magistrate's conclusion. The appellate court must be especially careful not to usurp the role of the Magistrate as the finder of fact in a case, such as this, where questions of credibility are decisive: Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 per Mason CJ at 461-462 .

70 After reviewing the evidence I am not satisfied that the Magistrate must have entertained a reasonable doubt about this charge. He observed the witnesses give their evidence and accepted that Laura Lammas was a credible witness. He was entitled to rely upon her evidence. He rejected the appellant's evidence because it did not accord with commonsense and the other evidence which he accepted. There was no other evidence which directly contradicted Laura Lammas' testimony. This ground of appeal must also fail.

71 This ground has three particulars, A, B and C. Particulars A and C I will include in my general discussion of the merits of this ground of appeal. Particular B is a discrete matter alleging error by the Magistrate because he did not obtain a comprehensive pre sentence report prior to sentencing the appellant to imprisonment. I will separately deal with that particular.

72 On 11 March 2004 the Magistrate delivered his reasons and convicted the appellant of the four charges. Then he told the appellant's counsel that the appellant was facing the prospect of going to prison and indicated that he would call for a verbal pre sentence report. He said he would sentence the appellant either that afternoon or the following day but expressed a preference for 2.15 pm that day. Counsel did not object to that course or seek a written report.

73 At 2.15 pm a verbal report was given. It was very short, taking up only two paragraphs in the transcript. As it is so short I will quote it in full:

"MS LEACH; I interviewed Mr Smejlis just before and he's maintaining he's not guilty for that, although he has been found guilty. On that basis, it's unlikely that he would benefit from any form of supervision that we could provide for him. He was offered the opportunity, but he says that he thought it wouldn't be appropriate. He advises that he is employed full-time with - - and he's also applied to the Air Force and he's got good family supports.

He describes his health as average to good and that he has no issues with alcohol or other drug use. And it's my recommendation that he be placed on a suspended term of imprisonment. It's unlikely that he will be here before the court and is it his first offence."

74 The appellant's counsel then presented a full plea in mitigation. During the plea, counsel did not suggest that the Magistrate should obtain a written pre-sentence report.

75 The Sentencing Act 1995 (WA), s 20(1) states:

"If a court considers it would be assisted in sentencing an offender by a pre-sentence report about the offender, it may order one".

76 Section 21 deals with the content of a report in the following terms:

"(1) When ordering a pre-sentence report a court may give instructions as to the issues to be addressed by the report.

(2) In the absence of specific instructions from the court that ordered it, a pre-sentence report is to set out matters about the offender that are, by reason of this Act or sentencing practice, relevant to sentencing the offender or to the making of a reparation order under Part 16."

77 The decision as to whether or not to order a pre-sentence report is one entirely within the discretion of the sentencing Court. A failure to obtain a report or failure to obtain an adequate report is an error which does not justify the granting of an appeal unless the failure to do so has resulted in an incorrect sentence being passed. For example, if it is shown that the sentence was excessive because the Magistrate failed to take into account a matter personal to the appellant which would have been discovered if a full pre-sentence report had been obtained. This follows from the principle that there must be shown to be a link between any error made by the Magistrate and the conviction recorded or sentence imposed on the Appellant.

78 Consequently I am not persuaded that, even if the Magistrate was in error in not obtaining a full pre-sentence, such an error would justify me allowing the appeal. However, in my opinion, where a Magistrate is seriously considering sending an offender to prison there is considerable merit in obtaining a written pre sentence report. This is particularly so where the offender is young or a first offender, as in this case. The decision to impose a sentence of imprisonment on such an offender should only be made after careful scrutiny of all matters that are relevant to sentence. Important considerations are matters personal to the offender, which are covered in full in a written pre-sentence report. A contrast only has to made between the usual quality of a written pre-sentence report and the paucity of information in the oral report provided to the Court in the present case to appreciate that a written pre-sentence report is of great value to a sentencing court in determining the appropriate sentencing disposition.

79 I now turn to the other particulars of this ground of appeal. The ground, essentially, concerns the exercise of the sentencing discretion having regard to the objective seriousness of the offences and the personal antecedents of the appellant.

80 In respect to the personal antecedents of the appellant, it is not submitted that the Magistrate failed to have regard to any relevant matter. The Magistrate took into account the youth of the appellant, he was 22 years old at the time of sentencing, that he had no prior convictions and that he was in full time employment. The Magistrate acknowledged that the appellant had aspirations to enter the Air Force. He also acknowledged that "it may well be that you're not likely to re-offend in any way such as this". He said that these were "significant factors", being "mitigating factors relating to you, personally".

81 The Magistrate was obliged to impose a sentence commensurate with the seriousness of the offence: Sentencing Act 1995 (WA), s 6. The seriousness of the offence is to be determined by taking into account the following matters:

(b) the circumstances of the commission of the offence, including vulnerability of any victim of the offence;

82 Further the Sentencing Act 1995 (WA), s 6(4) provides that a court must not impose a sentence of imprisonment of an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

83 There is no suggestion that the Magistrate failed to appreciate his obligation to determine the appropriate sentence in accordance with these sentencing principles. This is because he took the care to articulate them in his sentencing remarks. As to the statutory penalty for each offence he noted that, when dealt with summarily, it was 2 years' imprisonment. He was clearly of the opinion that these were serious offences and that the appellant had played an instigating role in the commission of them. In this regard he said:

"As to the circumstances of the commission of the offence, as I've mentioned earlier when I gave my reasons for decision, on the particular night you brought it about by bringing four of your associates, who did the thuggery for you. They came, they had weapons and they severely beat up various people who were at the gathering. I have seen the photographs. I have read the doctor's reports and it is indeed fortunate that the actions of you and your associates didn't cause indeed even greater injury to the people who were set upon by the use of weapons."

84 After referring to the injuries each complainant received he said:

"It was therefore a terrifying scene on this particular evening, brought out by your anger. You brought along associates who acted like thugs. They beat up people that were at the gathering with weapons, and you brought them there and took them away. It was clearly a chaotic evening as a result of what happened. It was violent. People were screaming.

[McKinlay] finished up unconscious after being beaten, has no memory of the event. [Goodwill's] evidence, which I have accepted, she was knocked out at some stage as a result of the second blow with the bat, and injuries were sustained - - bodily harm injuries were sustained by all four of them, and it's fortunate it wasn't worse."

85 He also had specific regard to the victim impact statement he had received from Goodwill which indicated that she had been traumatized by this incident to the extent that she was afraid to be by herself at night and her academic performance had suffered.

86 After referring to all these matters the Magistrate concluded that imprisonment was the only appropriate sentencing option. He then referred to Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 which concerns the matters that should be taken into account when deciding whether to suspend a sentence of imprisonment. He then concluded that having regard to all the circumstances an immediate term of imprisonment should be imposed.

87 The appellant submitted that the fact that the Magistrate sentenced the appellant to an immediate term of imprisonment indicated that he had failed to give effect to the principle that a sentence of imprisonment is a sentence of last resort. I do not agree. The Magistrate referred to that principle and weighed up all matters relevant to the imposition of sentence. His conclusion that "personal and general deterrence and punishment" were paramount was a conclusion that was open to him given the objective seriousness of the offences, the lack of mitigating factors which may have explained them, the seriousness of the injuries caused to the complainants and the lack of remorse shown by the appellant.

Ground (c) - Sentence for Assaulting Goodwill

88 The Magistrate sentenced the appellant to 6 months' imprisonment for assaulting Goodwill and ordered that the sentence be served cumulatively upon the concurrent sentences of 12 months' imprisonment he imposed for the assaults on McKinlay and Ellefsen. He did not give reasons for making the order for accumulation.

89 Taking the Magistrate's reasons as a whole it is clear that he considered that the appellant's assault on Goodwill involved extra criminality on the part of the appellant because, the Magistrate found, he was a principle offender in respect to the assaults on her.

90 I have already given my reasons for concluding that the Magistrate erred in finding that the appellant personally caused bodily harm to Goodwill. Having regard to this finding I consider that the Magistrate sentenced the appellant on the wrong factual basis. Therefore it is appropriate that the appellant be re-sentenced for the offence against Goodwill on the basis that he was guilty of it because he procured its commission.

91 In determining the appropriate sentence I must take into account all the sentencing principles that I have referred to earlier in these reasons. The Magistrate found that the assaults committed upon Ellefsen and McKinlay were more serious than this offence because they were more seriously injured than Goodwill. On the other hand the offence against Goodwill was serious for other reasons. She was a woman, supposedly in the safety of her own home, when she was repeatedly assaulted by a male with a weapon. The Magistrate found that this offence had been procured by her former boyfriend. Taking these matters into account I would be inclined, if I was sentencing the appellant at first instance, to impose exactly the same sentence upon the appellant for this offence as for the offences against Lammas and McKinlay. However I would order it to be served concurrently with the other sentences as the offences are all part of the one transaction. This would result in an aggregate term of 12 months' imprisonment.

92 Despite this view, I am cognisant that this would increase the sentence for the assault on Goodwill. This is an appeal and the double jeopardy principle applies. In fairness to the appellant, I should not increase the sentence for the particular offence on appeal, even though the order for concurrency would negate the impact of the longer sentence. It is appropriate to merely vary the order of the Magistrate by deleting his order that the sentence of imprisonment of 6 months' imprisonment for complaint No JO 4885 of 2003 be served cumulatively with the other sentences. Pursuant to the Sentencing Act 1995 (WA), s 88(1) that term will be served concurrently with the other terms.

93 The appeal against the convictions is dismissed. The appeal against sentence is allowed, in part. The Magistrate's order that the sentence of imprisonment of 6 months' imprisonment for complaint No JO 4885 of 2003 be served cumulatively with the other sentences is deleted.

Smejlis v Matthews [2004] WASCA 158

At a glance

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Judgment (171 paragraphs)

Smejlis v Matthews [2004] WASCA 158 (29 July 2004)

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Cases Cited (9)