Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on her pleas of guilty of two counts of aggravated assault occasioning bodily harm; one count of doing an act, with intent to harm, as a result of which the life, health or safety of a person was or was likely to be endangered; one count of criminal damage and one count of breach of bail - Total effective sentence of 5 years 3 months' imprisonment - Whether a miscarriage of justice in that the facts on which the appellant was sentenced in the District Court for the two offences of aggravated assault occasioning bodily harm were different from the agreed facts read by the prosecutor when the appellant originally pleaded guilty in the Magistrates Court - Whether the total effective sentence infringed the first limb of the totality principle

Criminal law - Appeal against sentence - Whether a magistrate erred in law by imposing a pre­sentence order

Bail Act 1982 (WA), s 51(2)

Criminal Appeals Act 2004 (WA), s 13, s 31(4)(a)

Criminal Code (WA), s 304(2), s 317(1), s 444(1)(b)

Sentencing Act 1995 (WA), s 32, s 33B, s 33C, s 33K

Application for leave to adduce additional evidence in the appeal dismissed

Application for leave to adduce additional evidence in the appeal dismissed

Blurton v The State of Western Australia [2014] WASCA 61

De Alwis v The State of Western Australia [No 2] [2015] WASCA 42

Garraway v The State of Western Australia [2015] WASCA 240

Kere Kere v The State of Western Australia [2016] WASCA 189

Lawrence v The State of Western Australia [2015] WASCA 187

Mourish v The State of Western Australia [2006] WASCA 257

Starr v The State of Western Australia [2011] WASCA 170

The State of Western Australia v Cheeseman [2011] WASCA 15

Williams v The State of Western Australia [2015] WASCA 110

1 BUSS P: The appellant appeals against sentence.

3 Appeal CACR 193 of 2015 relates to sentences of immediate imprisonment imposed by Sweeney DCJ in the District Court on 29 April 2015.

4 Appeal CACR 204 of 2015 (which was previously appeal SJA 1082 of 2015 in the General Division of the Supreme Court) relates to a pre-sentence order made by Magistrate Edwards in the Magistrates Court on 22 July 2014.

6 On 17 November 2015, Corboy J ordered that SJA 1082 of 2015 (which became CACR 204 of 2015) be referred to this court under s 13 of the Criminal Appeals Act 2004 (WA) for determination with CACR 193 of 2015.

The chronology of the appellant's offending, the pre-sentence order made in the Magistrates Court and the sentences of immediate imprisonment imposed in the District Court

7 The relevant chronology of the appellant's offending is as follows:

(a) On 10 May 2014, the appellant committed two offences of assault occasioning bodily harm, in circumstances of aggravation, contrary to s 317(1) of the Criminal Code (WA) (the Code), one against Rodney Smith and the other against Samantha Smith.

(b) On 22 July 2014, Magistrate Edwards made a pre-sentence order in respect of the appellant, pursuant to pt 3A of the Sentencing Act 1995 (WA), in relation to the two offences of assault occasioning bodily harm in circumstances of aggravation.

(c) On 8 August 2014, the appellant committed the offence of doing an act, with intent to harm, as a result of which the life, health or safety of another (namely Julie Anderson) was or was likely to be endangered, contrary to s 304(2) of the Code.

(d) On 8 August 2014, the appellant also committed the offence of wilfully and unlawfully damaging the windows of a motor vehicle, the property of Julie Anderson, contrary to s 444(1)(b) of the Code.

(e) On 12 August 2014, the appellant committed the offence of failing to appear, without reasonable cause, at the Magistrates Court in Mandurah and, also, failing to appear at the Magistrates Court in Mandurah as soon as practicable thereafter, such appearance being the requirement of a bail undertaking entered into by the appellant on 22 July 2014, contrary to s 51(2) of the Bail Act 1982 (WA).

8 The offence of doing an act, with intent to harm, as a result of which the life, health or safety of Julie Anderson was or was likely to be endangered, contrary to s 304(2) of the Code, was the sole count on indictment 1458 of 2014. The other offences dealt with in the District Court were the subject of a notice under s 32 of the Sentencing Act.

9 On 29 April 2015, Sweeney DCJ imposed individual sentences of imprisonment, as follows:

(a) assault occasioning bodily harm against Rodney Smith in circumstances of aggravation: 15 months' immediate imprisonment;

(b) assault occasioning bodily harm against Samantha Smith in circumstances of aggravation: 15 months' immediate imprisonment;

(c) doing an act, with intent to harm, as a result of which the life, health or safety of Julie Anderson was or was likely to be endangered: 4 years' immediate imprisonment;

(d) criminal damage: 18 months' immediate imprisonment; and

(e) breach of bail: 3 months' immediate imprisonment.

10 Her Honour ordered that the sentence of 15 months' immediate imprisonment for assault occasioning bodily harm against Samantha Smith, in circumstances of aggravation, be served cumulatively upon the sentence of 4 years' immediate imprisonment for the offence contrary to s 304(2) of the Code. Her Honour ordered that the other sentences be served concurrently with each other and concurrently with the sentence of 4 years' immediate imprisonment. The total effective sentence was therefore 5 years 3 months' imprisonment. A parole eligibility order was made.

The organisation of the balance of these reasons

11 It is convenient, first, to consider the appeal in CACR 193 of 2015 and, then, the appeal in CACR 204 of 2015.

The appeal in CACR 193 of 2015: the grounds of appeal

13 Ground 1 alleges that there was a miscarriage of justice in that 'the facts in the District Court for the two offences of aggravated assault occasioning bodily harm were materially different [from] those facts for the same offences which the appellant originally pleaded guilty to, and was placed on a pre-sentence order for, in the Magistrates Court on 22 July 2014'.

14 Ground 2 alleges, in effect, that the total effective sentence of 5 years 3 months' imprisonment infringed the first limb of the totality principle.

15 On 16 February 2016, Mazza JA granted leave to appeal on each of those grounds.

The appeal in CACR 193 of 2015: the merits of ground 1

16 On 22 July 2014, the appellant was convicted, on her pleas of guilty in the Magistrates Court, of the two offences of aggravated assault occasioning bodily harm.

17 The material facts were agreed between the prosecutor and defence counsel before the appellant entered her pleas.

18 Those agreed facts, as read by the prosecutor to Magistrate Edwards at the hearing, were as follows:

At about 12.10 pm on Saturday, 10 May 2014, the accused was at a bus stop situated outside the Mandurah Forum at 330 Pinjarra Road. The accused was in company with her two children aged two and six years of age. The female victim [Samantha Smith] was seated in the driver's seat of her car, which was parked in a parking bay directly behind the bus stop. She was waiting for her husband, who was being dropped off at that location by a work colleague. A verbal altercation has occurred between the accused and the female victim concerning the accused's children running near the road.

The accused's children began throwing sand and grass on to the victim's vehicle while the victim remained seated in the vehicle. The male victim [Rodney Smith] was a passenger in a vehicle stuck in traffic on the opposite side of the road. He witnessed the children throwing grass and sand onto his wife's vehicle. By the time the male victim got into the car park the accused was seated in the bus shelter with her children. The male victim picked up a handful of grass from the victim's bonnet and went and confronted the accused. The male victim flicked the grass into the face of the accused.

The accused stood up and began yelling and following the male victim as he walked away. The male victim then turned around and raised his fist towards the accused. With a closed fist the accused punched the male victim several times to the head, causing the victim to stumble backwards and lose his hat and glasses. The female victim got out of her vehicle and approached the accused. The accused turned towards the female victim and punched her with a closed fist to her left eye. During the struggle the male victim and the accused fell to the ground.

While the accused was on her back, she grabbed the male victim's hair in an attempt to keep him away from her. All parties were throwing punches at this time. A member of the public came along and split the parties up. The accused then walked off with her children, who were very upset. At the time the area was heavily populated with members of the public. The female victim received heavy bruising around her left eye, and bumps to the left side of her skull. The female victim was approximately 170 centimetres in height and of medium build.

The male victim received bruising to his left cheek, and a painful left shoulder. He suffered pain for several days after the incident. He is 175 centimetres in height and of slim build (ts 2 - 3). (emphasis added)

19 The emphasised passages (that is, the underlined parts) in the agreed facts read by the prosecutor to Magistrate Edwards were omitted from the facts read by the prosecutor to Sweeney DCJ.

20 After hearing submissions from the prosecutor and defence counsel, Magistrate Edwards made the pre-sentence order. Her Honour then said:

[A]lthough I've said that my view is that I should draw back from a term of imprisonment, that doesn't mean that it's out of the question altogether. All right. That is still hanging over your head (ts 11).

21 On 8 August 2014, the appellant committed the offence of doing an act, with intent to harm, as a result of which the life, health or safety of Julie Anderson was or was likely to be endangered, contrary to s 304(2) of the Code. The appellant pleaded guilty to that charge. She was committed to be sentenced on 29 April 2015 in the District Court.

22 The two charges of aggravated assault occasioning bodily harm, which the appellant committed on 10 May 2014, were, as I have mentioned, the subject of a notice under s 32 of the Sentencing Act.

23 The defence counsel who represented the appellant in the District Court was not the defence counsel who represented her in the Magistrates Court. Also, the prosecutor who appeared in the District Court was not the prosecutor who appeared in the Magistrates Court.

24 The material facts in relation to the two offences of aggravated assault occasioning bodily harm, as read by the prosecutor to Sweeney DCJ at the sentencing hearing on 29 April 2015, were as follows:

[A]t about 12.10 pm on Saturday, 10 May 2014, the offender was at a bus stop situated outside the Mandurah Forum at 330 Pinjarra Road. The offender was in company with her two children aged two and six years of age. The female complainant, Samantha Lee Smith was seated in the driver's seat of her vehicle, which was parked in a parking bay directly behind the bus stop. She was waiting for her husband, Rodney Alan

Smith who was being dropped off at that location by a work colleague. A verbal altercation occurred between the offender and Mrs Smith.

The offender's children began throwing sand and grass on to the complainant's vehicle while she remained seated in the vehicle. Mr Smith was a passenger in a vehicle stuck in traffic on the opposite side of the road.

He witnessed the children throwing grass and sand onto his wife's vehicle. By the time Mr Smith got into the car park the offender was seated in the bus shelter with her children. The male complainant picked up a handful of grass from the vehicle's bonnet and went and confronted the offender.

The male complainant flicked the grass at the offender. The offender stood up and attacked Mr Smith punching him with a closed right fist to the head forcing him to stumble backwards losing his hat and glasses.

The offender continued punching the male complainant and grabbed him by the shirt and hair with both of them falling to the ground. The female complainant got out her vehicle and went to break up the fight.

In doing so, the offender turned to her, grabbed her by the hair and punched her with a closed fist to the left eye. The female complainant fell to the ground and the offender continued punching her to the head as she was laying on the ground.

The male complainant grabbed the offender before a male member of the public came along and split the parties up. The offender then walked off with her children, who were very upset (ts 33 - 34). (emphasis added)

25 The emphasised passages (that is, the underlined parts) in the facts read by the prosecutor to Sweeney DCJ were different from the facts read by the prosecutor to Magistrate Edwards.

26 The defence counsel who represented the appellant in the District Court did not object to or contest any of the material facts as read by the prosecutor.

27 Before this court, counsel for the respondent accepted that neither the prosecutor nor defence counsel who appeared in the District Court was aware of the negotiations and agreement on the material facts which occurred before the appellant entered her pleas of guilty in the Magistrates Court (appeal ts 15 - 16).

(a) The material facts in relation to the two offences of aggravated assault occasioning bodily harm, as read in the District Court, were significantly different from the material facts in relation to those offences, as read in the Magistrates Court.

(b) Of particular note was the statement in the District Court (which had not been made in the Magistrates Court) that Samantha Smith 'fell to the ground and the offender continued punching her to the head as she was laying on the ground'.

(c) A further significant difference was that the facts as stated in the Magistrates Court asserted that Rodney Smith had flicked grass into the appellant's face and that Rodney Smith had raised his fist towards the appellant before she struck him. By contrast, the facts as stated in the District Court merely asserted that Rodney Smith had flicked grass at the appellant and the stated facts did not include the assertion that Rodney Smith had raised his fist towards the appellant before she struck him.

(d) The differences between the two sets of material facts 'resulted in the imposition of a sentence [in the District Court] that was more severe than it would have been if the facts as read out in the Magistrates Court [had been] presented in the District Court'. Reference was made, in support of that proposition, to the following remarks of Sweeney DCJ:

And then when his wife came to break you two up, you turned on her, punching her multiple times. And of course, your children saw all of that. It really was just a disgraceful incident (ts 58).

...

Turning to the offences at the bus stop, they were both serious in that you were punching both victims to the face and head. Both of them ended up on the ground, and we know from numerous other offences that punching people where they have the potential to end up with their heads on the ground carries the potential for serious injury ... They too deserve an immediate term in their own right, [given] your background of violence (ts 63).

29 Counsel for the appellant submitted that, in the circumstances, the imposition of a sentence of 15 months' immediate imprisonment for each offence of aggravated assault occasioning bodily harm, constituted 'a miscarriage of justice, requiring intervention [by this court]'.

30 Magistrate Edwards, upon making the pre-sentence order in respect of the appellant and as required by s 33C(1) of the Sentencing Act, adjourned the sentencing of the appellant for the two offences of aggravated assault occasioning bodily harm to the 'sentencing day', as defined in s 33B(1).

31 The pre-sentence order was not completed. About two weeks after being placed on the pre-sentence order, the appellant committed the offence contrary to s 304(2) of the Code. That offence, which carried a maximum penalty of 20 years' imprisonment, was not capable of being dealt with summarily.

32 By s 33K(1) of the Sentencing Act, a court sentencing an offender who has been subject to a pre-sentence order, whether on the sentencing day or on a day prior to that day:

(a) must take into account the offender's behaviour while subject to the pre-sentence order; and

(b) may use any sentencing option available under pt 5 of the Sentencing Act to the court in respect of the offence concerned.

33 In my opinion, the first difference in the material facts complained about by counsel for the appellant, namely that Rodney Smith flicked grass into the appellant's face (as alleged in the Magistrates Court) as distinct from Rodney Smith having merely flicked grass at the appellant (as alleged in the District Court), in combination with Rodney Smith's action in raising his fist towards the appellant, was of relevance in that it affected to some degree the context in which the appellant's offending occurred. However, in my opinion, the appellant's response was grossly disproportionate on either version of the facts. I am satisfied, generally for the reasons I give in considering the merits of ground 2, that, even if the appellant should have been sentenced on the basis of the facts as alleged in the Magistrates Court, no different individual sentences should have been imposed for the offences of aggravated assault occasioning bodily harm and no different total effective sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act.

34 In my opinion, the second difference in the material facts complained about by counsel for the appellant, namely that the level of violence inflicted by the appellant on Samantha Smith, as alleged in the Magistrates Court, was less than the level of violence, as alleged in the District Court, is significant, to the extent it was alleged in the District Court that the appellant struck Samantha Smith to the head after she had fallen to the ground, but less significant, to the extent it was alleged in the District Court that the appellant grabbed Samantha Smith by the hair. However, I am satisfied, generally for the reasons I give in considering the merits of ground 2, that, even if the appellant should have been sentenced on the basis of the facts as alleged in the Magistrates Court, no different individual sentences should have been imposed for the offences of aggravated assault occasioning bodily harm and no different total effective sentence should have been imposed.

35 I note Sweeney DCJ's observation, when imposing sentence, that each of the terms of 15 months' immediate imprisonment for the offences of aggravated assault occasioning bodily harm were 'shorter than the offences deserved, to take into account the overall total sentence and its effect upon [the appellant]' (ts 64). I agree with that observation, which is also applicable to the facts as alleged in the Magistrates Court.

36 No miscarriage of justice has occurred, as alleged in ground 1.

The appeal in CACR 193 of 2015: the merits of ground 2

38 As to the offence contrary to s 304(2) of the Code, at the time of the offending the appellant was aged 28, 177 cm in height and of solid build and the victim, Julie Anderson, was aged 47, 162 cm in height and of medium build.

39 Prior to the offending, the appellant and Ms Anderson were friends. They had known each other for about four months. In late July/early August 2014, Ms Anderson moved into the house occupied by the appellant. An arrangement was made in relation to board. Ms Anderson would supply food for the appellant and her two daughters in exchange for the use of the house and its facilities.

40 On 8 August 2014, at about 6.00 pm, the appellant was at home with her two daughters. Ms Anderson returned home with Jessie Lindsay. Ms Anderson and Ms Lindsay entered the house and went to a bedroom. Ms Anderson collected clothing and other items. She had arranged to attend a barbecue at a friend's house. Ms Anderson handed those items to Ms Lindsay who took them to Ms Anderson's motor vehicle.

41 Ms Anderson entered the kitchen and opened the refrigerator for the purpose of removing food to take to the barbecue. The appellant entered the kitchen and verbally abused Ms Anderson in relation to a missing television. Ms Anderson attempted to placate the appellant, but the appellant became aggressive and irrational. She shouted and swore at Ms Anderson. The appellant took the food that was being held by Ms Anderson and threw it on the kitchen floor. As Ms Anderson bent down to recover the food, she looked up and saw that the appellant had a hammer in her right hand. According to Ms Anderson, the appellant raised the hammer above her shoulder and said, 'I'm going to fucking kill you'. She then struck Ms Anderson repeatedly in the head with the hammer. This caused immediate pain and bleeding to Ms Anderson's head. She pleaded with the appellant to stop hitting her. According to Ms Anderson, the appellant continued to scream, 'I'm going to fucking kill you'. Ms Anderson raised her hands to protect herself and suffered a number of blows to her arms and hands.

42 Ms Anderson ran from the house. The appellant pursued her while still in possession of the hammer until Ms Anderson reached her motor vehicle. Part of the offending was witnessed by the appellant's children. Ms Anderson received medical attention for her injuries including about 14 staples to her head. She suffered bruising to her arms and hands.

43 As to the offences of aggravated assault occasioning bodily harm, the material facts, as read in the Magistrates Court and in the District Court, are set out in my reasons relating to ground 1.

44 As to the offence of criminal damage, upon Ms Anderson entering her motor vehicle the appellant raised the hammer above her right shoulder and repeatedly struck the vehicle's windscreen (causing it to shatter) and a door panel. When this occurred Ms Lindsay was seated in the front passenger seat. Ms Anderson, fearing for her own safety and the safety of Ms Lindsay, started the vehicle and drove away from the premises. Part of the incident was witnessed by the appellant's children. The appellant caused about $500 damage to the vehicle.

45 As to the offence of breach of bail, on 12 August 2014 the appellant breached her bail undertaking in that she failed to appear in the Magistrates Court at Mandurah for the 'return date' of her pre-sentence order.

46 The offence contrary to s 304(2) of the Code carries a maximum penalty of 20 years' imprisonment. The maximum penalty for each of the offences of aggravated assault occasioning bodily harm is 7 years' imprisonment. The offence of criminal damage carries a maximum penalty of 10 years' imprisonment. The maximum penalty for the offence of breach of bail is 3 years' imprisonment or a fine of $10,000 or both.

47 The sentencing judge said in her sentencing remarks:

(a) The appellant had pleaded guilty to each of the offences at the first reasonable opportunity (ts 54 - 55).

(b) The appellant asserted that, at the material time, Ms Anderson was her drug supplier. It was unnecessary for her Honour to make a finding on that issue. Her Honour was content to accept, for the purposes of sentencing, that Ms Anderson was the appellant's drug supplier (ts 55).

(c) The appellant asserted that she was upset with Ms Anderson not merely because the appellant's television was missing, but also because Ms Anderson had shown the appellant's 7-year-old daughter some pornography. The State accepted that Ms Anderson had, by accident, exposed the child to pornography on one occasion (ts 55 - 56).

(d) On the day of the offending against Ms Anderson, the appellant believed that Ms Anderson was grooming the appellant's daughter for the purposes of sexually abusing her or, perhaps, exposing her to the sex worker industry. The appellant had apparently been a victim of sexual abuse and had been a sex worker previously and was, perhaps, 'particularly sensitive' to those issues (ts 56).

(e) Also, at the time of the offending against Ms Anderson, the appellant was 'in the grip of [illicit drug] addiction' and that, in turn, adversely affected her mental stability (ts 56).

(f) The appellant's belief about Ms Anderson placed the assault upon her into context. It gave colour to the appellant's hysterical state and demonstrated that she did not 'just fly at her viciously for no reason at all'. However, the appellant's reaction to Ms Anderson was 'both illegal and ... completely extreme' (ts 56).

(g) The reason why the appellant did not respond in an appropriate way to Ms Anderson was because she was in 'the grip of methylamphetamine addiction, [and she had] a problem with both violence and mental health issues when [she was] using it' (ts 56).

(h) However, the context of the appellant's offending against Ms Anderson afforded 'very little mitigatory value' (ts 57).

(i) The appellant denied having threatened to kill Ms Anderson. It was unnecessary for her Honour to make a finding about it (ts 57).

(j) The action of Rodney Smith in '[f]licking grass at [the appellant] probably did inflame the situation' although it was 'a pretty minor thing for him to do'. The appellant was in a 'highly volatile state anyway' and she 'may well have overreacted even if [Rodney Smith had treated her] with kid gloves'. The appellant's physical attack upon him was 'totally uncalled for and over the top' (ts 57).

(k) When Samantha Smith came to 'break [Rodney Smith and the appellant] up, [the appellant] turned on her, punching her multiple times'. This was seen by the appellant's children. It was a 'disgraceful incident' (ts 58).

(l) The appellant punched both Rodney Smith and Samantha Smith to the face and head. Both victims 'ended up on the ground' (ts 63).

48 The appellant was born on 20 August 1985. She was aged 29 at the time of sentencing in the District Court.

49 The information before the sentencing judge included a pre-sentence report dated 20 November 2014 and a psychiatric report dated 10 December 2014.

50 Those reports reveal that, prior to the current offending, the appellant was diagnosed with borderline personality disorder.

51 The author of the psychiatric report, Dr Chun Ong, said:

[The appellant has] a history of psychotic symptoms predominantly in the context of substance abuse. She appears to have borderline personality traits which include chronic impulsivity, history of deliberate self harm and emotional dysregulation which is exacerbated by substance abuse. After a substantial period of relative mental stability and reported abstinence from substance abuse, she relapsed into substance use in 2013 which has contributed to her recent reoffending. It is unclear if she has a psychotic illness such as Schizophrenia as her history suggests that she has been psychotic predominantly in the context of substance abuse suggestive of Substance induced psychosis.

52 Dr Ong listed a number of 'historical factors' that were relevant to the assessment of the appellant's risk of future violence:

[The appellant] has a known history of previous violence and antisocial behaviour. She has a poor work history, substance use, problems with relationships and problems with previous responsiveness to supervision or treatment. She also has a history of trauma/victimisation and appears to have a major mental disorder.

53 According to Dr Ong, the appellant's 'high risk scenarios of violence would be if she relapses into substance abuse and further interaction with the victim [that is, with Ms Anderson]'. Her risk of violent reoffending 'is likely to be lower if she can abstain from substances, refrain from interacting with the victim, and engage with mental health services for the monitoring of psychotic relapse'.

54 The appellant has a significant prior criminal record. She has previously been imprisoned. Her prior convictions include stealing, unlawful damage (multiple offences), use of prohibited drugs, unlawful wounding, assault occasioning bodily harm, assaulting a driver of a passenger vehicle, common assault (multiple offences) and breach of bail (multiple offences).

55 Her Honour said that the appellant's prior criminal record revealed that 'drug-fuelled violence' was not out of character for her (ts 58).

56 The sentencing judge found that illicit drug use was the appellant's 'predominant problem', but accepted that there was also 'an underlying mental fragility' which was 'very much exacerbated by the use of drugs' (ts 60). Her Honour also found that the appellant had abused illicit drugs 'knowing that [she had] a tendency to behave violently when both under the influence [of] and when coming down from drugs' (ts 60). The appellant's mental health was therefore of 'limited mitigatory value' (ts 61). The appellant was not an unsuitable vehicle for general deterrence, and there was no reason to believe that she would have a 'harder time in prison due to mental illness' (ts 61 - 62). Her mental state appeared to have stabilised since she had been in custody and ceased taking illicit drugs (ts 62).

57 Her Honour noted the appellant's pleas of guilty. She accepted that the pleas were made at the first reasonable opportunity. Her Honour allowed a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence she would otherwise have imposed for each offence.

58 The sentencing judge said there was 'no compelling evidence of remorse in relation to the attack upon Ms Anderson over and above that which is demonstrated by [the appellant's] acceptance of [her] guilt' (ts 61).

59 Her Honour took into account the appellant's deprived childhood. As a child, the appellant was exposed to violence.

60 The sentencing judge accepted that, at the time of sentencing, the appellant was 'drug free', and that she loved her children and would 'like to stay drug free, and not relapse again' (ts 61).

61 Her Honour said, in imposing the sentence of 15 months' immediate imprisonment for each offence of aggravated assault occasioning bodily harm, that each of those terms was 'shorter than the offences deserved, to take into account the overall total sentence and its effect upon [the appellant]' (ts 64).

62 Ground 2 alleges, in effect, that the sentencing judge erred by imposing a total effective sentence (namely 5 years 3 months' imprisonment) which infringed the first limb of the totality principle.

63 The appellant does not allege that her Honour made any express error and she does not challenge any of her Honour's findings of fact, apart from her complaint about the material facts read by the prosecutor to her Honour.

64 The nature and content of the first limb of the totality principle and other relevant sentencing principles are set out in Williams v The State of Western Australia [2015] WASCA 110 [47] - [50]. It is unnecessary to repeat them.

65 I have had regard to sentencing dispositions for offending against s 304(2) of the Code including Starr v The State of Western Australia [2011] WASCA 170; Blurton v The State of Western Australia [2014] WASCA 61; De Alwis v The State of Western Australia [No 2] [2015] WASCA 42; and Lawrence v The State of Western Australia [2015] WASCA 187. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

66 As Mazza JA (McLure P and Buss JA agreeing) observed in Lawrence [36] - [37]:

Given the wide variety of circumstances in which the offences are committed, and of the offenders who commit them, there is no tariff for s 304(2) offences. This is illustrated by the outcomes in Wallam [The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116], BLM [The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414] and Hinkley [Hinkley v The State of Western Australia [2014] WASCA 122]. Sentences imposed in other cases provide a yardstick or reference point for ensuring broad consistency in sentencing; however, they do not mark the boundaries of a court's sentencing discretion in any individual case. Rather, it is the unifying principles applied in comparable cases to which appellate courts attach importance.

In Hinkley, the court noted at [18] that the following factors are relevant to sentencing for an offence under s 304(2) of the Criminal Code:

(a) The nature and seriousness of the offender's intent to harm.

(b) The nature and seriousness of the bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be.

(c) The potential (as distinct from the actual) consequences of the offender's conduct.

67 I have also had regard to sentencing dispositions for offending against s 317(1) of the Code (both with and without circumstances of aggravation) including Mourish v The State of Western Australia [2006] WASCA 257; The State of Western Australia v Cheeseman [2011] WASCA 15; Garraway v The State of Western Australia [2015] WASCA 240; and relevant sentencing dispositions referred to in those cases. As I have mentioned, the maximum penalty for assault occasioning bodily harm, in circumstances of aggravation, is 7 years' imprisonment. By contrast, the maximum penalty for assault occasioning bodily harm, without circumstances of aggravation, is 5 years' imprisonment. Once again, it is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

68 As I noted (Mazza J agreeing) in Cheeseman, it is difficult to discern any 'tariff' or usual sentencing range for assault occasioning bodily harm [75].

69 In the present case, the appellant's offences against s 304(2) and s 317(1) of the Code were serious.

70 The appellant was aged 29 when sentenced. She was not youthful or inexperienced for sentencing purposes.

71 The appellant was not of prior good character. She had previous convictions. The fact that the previous sentences did not achieve the purposes for which they were imposed did not aggravate the seriousness of the offences in question, but the previous convictions demonstrated that the current offences were not aberrations by a person who was otherwise of good character.

72 The main sentencing considerations were appropriate punishment, the protection of the public and personal and general deterrence.

73 I am satisfied that it was necessary, in order properly to mark the appellant's overall criminality in committing numerous offences on different occasions, to accumulate the sentence for the offence contrary to s 304(2) of the Code (4 years' immediate imprisonment) with the individual sentence for one of the offences contrary to s 317(1) of the Code (in each case, 15 months' immediate imprisonment).

74 I am of the opinion, after taking into account the maximum penalties for each of the offences; the facts and circumstances of the offending viewed as a whole; the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the personal circumstances of the appellant; and all other sentencing factors (including the pleas of guilty and the other mitigating factors), that the total effective sentence of 5 years 3 months' imprisonment was within the range open to her Honour on a proper exercise of her discretion.

75 The total effective sentence bears a proper relationship to the overall criminality involved in the appellant's offending, viewed in its entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be inferred from the sentencing outcome.

76 I add, for completeness, that the individual sentences for the offences of aggravated assault occasioning bodily harm are not manifestly excessive. Neither sentence is unreasonable or plainly unjust. As to the principles of manifest excess, see Kere Kere v The State of Western Australia [2016] WASCA 189 [31] - [33] (Buss P, Mazza JA agreeing).

The appeal in CACR 204 of 2015: the ground of appeal

79 The ground alleges that the magistrate erred in law by imposing a pre-sentence order 'when her Honour concluded that the offences did not warrant the imposition of a term of imprisonment'.

80 On 16 February 2016, Mazza JA granted leave to appeal on that ground.

The appeal in CACR 204 of 2015: the merits of the ground of appeal

81 In my opinion, the ground of appeal (and appeal CACR 204 of 2015 generally) is moot in that, even if there was merit in the ground, that outcome could not impugn, or have any bearing on the correctness of, the individual sentences imposed in the District Court for the offences of aggravated assault occasioning bodily harm or the total effective sentence.

82 Further, in my opinion, the ground of appeal is inconsistent with the grounds of appeal advanced and the orders sought in appeal CACR 193 of 2015. In CACR 193 of 2015 the appellant claimed that the length of the total effective sentence was excessive and a lower custodial term should be imposed. In CACR 204 of 2015 the appellant claims that it was not open to impose a term of immediate imprisonment for any of the offences the subject of the pre-sentence order.

83 In any event, Magistrate Edwards did not conclude unequivocally that the offences in question did not warrant the imposition of a term of immediate imprisonment. See [20] above.

84 Counsel for the appellant conceded (properly, in my opinion), at the hearing of the appeal, that the point raised in the ground of appeal 'is a moot point and, ultimately, it was really brought for completeness sake' (appeal ts 14).

85 As I have mentioned, upon the making of the pre-sentence order in respect of the appellant and as required by s 33C(1) of the Sentencing Act, Magistrate Edwards adjourned the sentencing of the appellant for the two offences of aggravated assault occasioning bodily harm to the 'sentencing day', as defined in s 33B(1). The pre-sentence order was not completed and the appellant was never sentenced by Magistrate Edwards (or any other magistrate).

86 In the circumstances, the only basis on which the appellant could challenge the sentencing dispositions of Sweeney DCJ was by an appeal to this court against her Honour's sentencing decisions. That was done by the appellant in CACR 193 of 2015. For the reasons I have given, in considering the merits of the grounds of appeal in CACR 193 of 2015, the individual sentences imposed for the offences of aggravated assault occasioning bodily harm should not be disturbed and the total effective sentence for all of the offences in question was within the range open to her Honour on a proper exercise of her discretion.

88 The appeal in CACR 193 of 2015 and the appeal in CACR 204 of 2015 should be dismissed.

89 On 27 October 2016, after these appeals were heard, the appellant filed an application in each of the appeals for an order that the court grant the appellant leave to adduce additional evidence 'should it be necessary to re-sentence the appellant'. The additional evidence relates to changes in the appellant's personal circumstances (in particular, her pregnancy) since the appeals were heard.

90 I have decided that the appeal in CACR 193 of 2015 and the appeal in CACR 204 of 2015 should be dismissed. It follows that the application filed on 27 October 2016 in each of the appeals should also be dismissed.

91 By an email of 23 November 2016, sent to the court with the consent of the solicitors for the appellant, the Director of Public Prosecutions

(WA) informed the court that, after the appellant was sentenced by Sweeney DCJ and before these appeals were heard, the appellant was convicted of and sentenced for two other offences.

92 The first offence, namely assault occasioning bodily harm contrary to s 317(1) of the Code, was committed on 8 June 2015 against a fellow prisoner at Bandyup Women's Prison. On 28 August 2015, a magistrate sentenced the appellant to 9 months' immediate imprisonment and ordered that the sentence be served cumulatively upon all other sentences she was then serving.

93 The second offence, namely making a threat with intent to unlawfully injure, endanger or harm any person contrary to s 338B(b) of the Code, was committed on 24 September 2015 at Bandyup Women's Prison. On 12 January 2016, a magistrate sentenced the appellant to 1 month's immediate imprisonment and ordered that the sentence be served concurrently with all other sentences she was then serving.

94 The appellant did not appeal against the sentence imposed on 28 August 2015 or the sentence imposed on 12 January 2016.

95 As I have mentioned, both of the additional sentences were imposed after Sweeney DCJ sentenced the appellant. Neither of those sentences is relevant to any of the grounds of appeal in CACR 193 of 2015 or CACR 204 of 2015. In particular, they are not relevant to ground 2 in CACR 193 of 2015 which alleges that the total effective sentence of 5 years 3 months' imprisonment imposed by Sweeney DCJ infringed the first limb of the totality principle. Both of the additional sentences would, of course, have been relevant in the application of the totality principle if this court had decided that the appeal in CACR 193 of 2015 should be allowed and that this court should resentence the appellant. However, as I have indicated, each of the appeals before this court should be dismissed.