Appellant resentenced to 7 1/2 months' imprisonment, suspended for 12 months

1 JENKINS J: The appellant appeals from the sentence imposed on him by a magistrate sitting in the Magistrate's Court at Rockingham on 5 September 2008 for the offence of assault occasioning bodily harm. The magistrate sentenced the appellant to 9 months' imprisonment. These are my reasons for allowing the appellant's appeal.

2 On 28 October 2008, McKechnie J granted the appellant leave to appeal the sentence on two grounds. At the hearing of the appeal, ground 1 was abandoned by the appellant's counsel. The sole ground argued by the appellant's counsel states:

The sentence imposed was manifestly excessive when reference is had to comparative cases and in all the circumstances, namely;

Particulars:

(a) the plea of guilty;

(b) the Appellant's age and antecedents; and

(c) the circumstances of the offending.

3 On 1 August 2008 the appellant pleaded guilty to the charge which alleged that on 18 March 2009 at Rockingham he unlawfully assaulted Goran Jasnic and thereby did him bodily harm. The appellant was remanded on bail to appear for sentence on 22 August 2008. The purpose of the remand was so that the prosecution could produce the surveillance footage from the nightclub where the offence occurred and so that an oral pre-sentence report could be obtained.

4 The matter was adjourned on two further occasions until the appellant appeared before a magistrate on 5 September 2008. On that date the appellant again pleaded guilty to the charge. The prosecutor then read out the facts as follows:

PROSECUTOR: Sir, quarter past two in the morning on 18 March this year, the accused was working as a crowd controller at the Vibe Nightclub in Rockingham. The accused was alerted by a work colleague that a fight had erupted upstairs. He attended the top of the flight of stairs and assisted in taking the complainant down the stairs and he ejected him from the club. Two other males with the complainant were also ejected. Once the complainant was outside the accused has remained at the entrance to the club to prevent the complainant from re-entering.

On two occasions the complainant has attempted to re-enter and punched the accused to the face and on both occasions (indistinct) on the pavement outside the club. At that point the accused came up behind the complainant and pulled him down to the ground, then kicked the complainant twice - - -

HIS HONOUR: This is after he has been escorted out.

PROSECUTOR: Yes, sir.

HIS HONOUR: The second time (indistinct)

PROSECUTOR: At that point the accused came up behind the complainant and pulled him down on to the ground. He has then kicked the complainant twice to the face and head area with his foot and as a result of the incident the complainant received multiple fractures to his jaw and underwent surgery to have plates inserted in the area, sir.

5 An officer from Community Justice Services then gave an oral pre-sentence report. The officer reported that the appellant had told him that the offence occurred whilst he was defending himself as the complainant had threatened to kill him after he, the appellant, had pushed the complainant to the ground. The appellant told the officer that he responded to the threats as he feared for his life.

6 The officer referred to the appellant's criminal history as being minimal. He has convictions for stealing offences in 2001 and four traffic offences in 2002, 2003 and 2008 respectively. The officer advised the magistrate that the appellant lives with his supportive family and that his brother died when he was 14 in a traffic accident. I am unsure whether this was the appellant's age or the age of his brother.

7 The appellant has a 6-year-old child from a previous relationship. He is currently in another relationship. He has a positive relationship with his family. He ceased schooling halfway through year 11 and then completed three months of a boat building course. He commenced work as a crowd controller in February 2008. Since the offence he has ceased that work. Approximately 10 weeks before his sentencing hearing he commenced casual work as a road traffic controller.

8 The appellant's only health issue is a childhood diagnosis of attention deficit disorder. However, the court was advised that the appellant had ceased using his medication and claimed to be able to self regulate his behaviour. The appellant had experimented as a teenager with cannabis but at the time of the offending and sentencing he did not use any drugs and he was only a social drinker.

9 The appellant had advised the community corrections officer that due to work and family commitments he would be unable to comply with the requirements of a community based order.

10 The appellant's then counsel presented a plea in mitigation. The plea contained the following additional information. First, the appellant was 26 years of age at the time of the commission of the offence. Secondly, the appellant had pleaded guilty at the first available opportunity. Thirdly, the DVD of the incident showed there were facts which mitigated the offence. Fourthly, the incident started when the appellant was called upstairs and saw his work colleague on the floor, being kicked by the complainant and another man. Fifthly, the appellant was remorseful. Sixthly, the appellant was in fear and panicked and he accepted that the force he used was excessive and unreasonable. Seventh, the appellant was a qualified crowd controller but lacked experience. Eighth, the appellant would, because of the conviction for this offence, be unable to return to work as a crowd controller and nine, the likelihood of another such incident was extremely remote.

11 The appellant's counsel gave the appellant's version of the incident in the following terms:

My client pulled the complainant away and two other staff pulled the other two people away. My client's colleague got up and proceeded to show the complainant to the door. To do this they had to go down a flight of stairs.

The complaint was struggling and he and my client's colleague fell down the stairs. My client went down the stairs to the aid of his colleague because his colleague was lying motionless at the base of the stairs - he appeared unconscious. The complainant had adopted a stance that made my client think he was again going to kick his colleague. My client pushed the complainant out the door and went to the aid of his colleague. He helped his colleague up.

While doing this, the complainant returned and punched my client in the head. My client punched him back and again pushed him out the door. My client's colleague regained his senses and he and my client went to the door. The complainant came back again. He was very angry and threatening to bash and kill my client and his colleague. I am instructed the complainant is a large and fit man. I have viewed the DVD and this certainly seems to be the case.

The altercation moved out on to the footpath. My client considered the complainant was strong enough, sufficiently affected by alcohol, out of control and had the frame of mind to carry out his threat to bash and/or kill my client and his colleague. My client feared for his safety. He managed to push the complainant to the ground whereupon the complainant's threats became louder and more vehement. My client kicked the complainant twice.

12 Counsel handed up two references. The first was from the appellant's current employer, which spoke of the appellant as being loyal, considerate, sensitive and a direct communicator who was able to raise matters in a non-threatening manner. The second was from a personal friend who had only known the appellant for 10 weeks. It spoke of the appellant in a positive manner.

13 The appellant's counsel said the appellant could pay a moderate fine. The magistrate said that his first thought was that it was going to be well in excess of a $2,000 fine if one was imposed. The magistrate said something which was not audible on the recording of the proceedings. Counsel then asked for any sentence to be suspended.

14 The magistrate then retired to watch the DVD containing the surveillance footage of the incident. When he returned the magistrate proceeded to deliver his sentencing remarks. His Honour's summary of the facts was unremarkable except for one matter. He referred to the appellant kicking the complainant in the face on two occasions. I watched the same DVD on a number of occasions and I could not see two kicks to the complainant's face. The first kick from the appellant appeared to hit the complainant on his back between his shoulder blades or perhaps a bit higher. The second kick was an apparently full force kick to the face.

15 I raised this discrepancy with the appellant's counsel and he agreed with my view of the surveillance footage. The respondent's counsel said that the matter was not clear from the DVD. I have since watched the DVD again and I remain of the view that I have just expressed. Despite this matter being drawn to the attention of the appellant's counsel, he did not seek to amend the grounds of appeal to allege this error on behalf of the magistrate and simply requested that it be taken into account in considering the appeal generally.

16 The magistrate then proceeded to sentence the appellant as follows:

Nevertheless, this is an extremely serious matter and, in my view, having regard to the overall circumstances of both a personal and general nature (indistinct) penalty is not an appropriate disposition (indistinct) a person by kicking him whilst he was in a defenceless position, with such force as to cause extremely serious injuries to him, which have already been described.

For those reasons (indistinct) will not be appropriate (indistinct) in all the circumstances it is my view that the only appropriate disposition, recognising that it is a sentence of last resort, is one of imprisonment (indistinct) is at the upper level of seriousness. In all the circumstances, as I have said, I do not believe there are any alternative appropriate penalties which can be applied in this case.

17 The magistrate determined that a sentence of 9 months' imprisonment was appropriate for the offence. He referred to the offence as being at the upper level of seriousness of offences of this type. He then turned to the question of the suspension of that term and his Honour said:

As a question of law I must consider whether or not that term should be suspended in regard to your personal circumstances and those relating to the commission of this offence in accordance with (indistinct)

I have already indicated the general circumstances reveal that your behaviour is at the upper level of seriousness. There are no issues which require attention in the form of rehabilitation, albeit that you obviously have an anger management problem but that in itself is insufficient, in my view, to render an order that it should be suspended. In all the circumstances, an immediate term of imprisonment, in my view, is the only appropriate disposition in these circumstances. You shall therefore be sentenced to nine months' imprisonment.

18 It is clear from what I have said and quoted of the transcript that not all of the magistrate's remarks were recorded. Some of them were indistinct. However, in most cases the omission does not affect the general tenor of his Honour's remarks, which is still apparent.

19 As I have said, I have watched the DVD and I make the following remarks about the incident. The beginning of the incident is not visible on the DVD. The first time the complainant is visible on the DVD is when the viewer sees him being dragged on the ground by another crowd controller, to the top of the stairs. The complainant is then pulled to his feet and manhandled down the stairs. There appears to be some wrestling going on between the crowd controller, who is manhandling him down the stairs, and the complainant. At the bottom of the stairs the crowd controller who has taken him down the stairs is seen on the ground. He is not visibly injured in any way and gets up almost immediately. It appears that in the wrestle that has occurred down the stairs, the crowd controller has fallen to the floor.

20 The appellant is then seen at the bottom of the stairs to push the complainant out of the nightclub and across the pavement. The appellant then goes back through the door of the nightclub and appears to stay there. On two occasions the complainant tries to re-enter the nightclub and appears to be angry and upset. On the second occasion when he attempts to re-enter the nightclub he punches or tries to punch the appellant and the appellant punches him back.

21 A short time after that another person is ejected from the nightclub and the whole incident spills onto the pavement. A number of crowd controllers and patrons are then on the pavement. Another altercation is seen to start between a person, who appears to be a crowd controller, and another person, who appears to be a patron. That is, a physical altercation occurs where there is at least wrestling if not punches being thrown. The complainant is seen to approach that altercation. The appellant then comes around behind the complainant and puts him on the ground by walking behind him and tripping him up, whilst pushing down on his shoulders.

22 Immediately before that there was no confrontation occurring between the complainant and any particular person. However, the complainant was walking towards an altercation between these other two persons and indeed the appellant, in the submissions made to the magistrate, appears to have been concerned that the complainant was planning to involve himself in that fight.

23 The appellant says that at that time and indeed prior to that, the complainant was threatening him and others. There is no sound on the DVD and thus it is not possible to hear the threats which the appellant says the complainant was making. Once the complainant was on the ground the appellant and another person, who appears to be another crowd controller, were standing over him. Even though the complainant was then sitting up and according to the appellant threatening him with serious injury, there was little if any, at that point, direct threat to the appellant's safety.

24 The appellant's counsel was right to concede that the appellant had acted with excessive force and unreasonably in then assaulting the complainant. What occurred was that the appellant kicked the complainant once in the back as I have described earlier and then, a few seconds later, he kicked him in the face. The magistrate was also correct to say that the appellant exhibited a loss of self control and displayed a lack of responsibility at that time. The kicks do not appear to have immediately disabled the complainant. The DVD shows the complainant getting up and remaining at the scene for some time afterwards.

25 I now turn to the law applicable to this appeal. The imposition of a sentence is an exercise of judicial discretion. The principles upon which an appellate court must deal with an appeal against sentence were restated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671. It is not sufficient that an Appellate Court may take a different approach or impose a different sentence. It must be demonstrated that the sentencing Judge erred in the exercise of his or her discretion: House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

26 In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Gleeson CJ and Gummow, Hayne and Callinan JJ said:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy' [25].

And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies [27].

27 In Gibbs v The Queen [2009] WASCA 7 [54] - [55] Steytler P, McClure J agreeing, said:

...it is necessary to bear in mind that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale [58], Kirby J said:

Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it ... As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.

28 In Chan v The Queen (1989) 38 A Crim R 337, 342 Malcolm CJ said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.

29 Despite the fact that the Sentencing Act 2004 (WA) (Sentencing Act) now applies to the determination of the appropriate penalties for offences, the principles enunciated by Malcolm CJ still apply in respect to appeals against sentence. It was also said in Gibbs [52]:

... it is very difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of, individual considerations. Sentencing is a discretionary exercise and a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court.

30 When considering what has been described as the standards of sentencing customarily observed with respect to the crime by examining other cases, it is apposite to remember what Hunt CJ at CL said in the New South Wales Supreme Court (with the concurrence of other members of that court) in R v Morgan (1993) 70 A Crim R 368, 371:

It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.

31 I now turn to apply this law to the facts of this case. The maximum sentence prescribed by law for the crime is 5 years' imprisonment if dealt with on indictment or 2 years' imprisonment and a fine of $24,000 if dealt with summarily. The sentence imposed by the magistrate was not manifestly excessive having regard to the maximum penalty for the offence.

32 As to standards of sentencing customarily observed with respect to the crime, the appellant relied on a number of cases. To these I would add the case of Mourish v the State of Western Australia [2006] WASCA 257, which reviewed a number of cases involving appeals against sentence for assault occasioning bodily harm and The State of Western Australia v Camilleri [2008] WASCA 217. Whilst there is no tariff for an offence of this type, there are a number of cases which demonstrate that a sentence of 9 months' imprisonment is well within the range of appropriate sentences for such an offence.

33 The cases indicate that sometimes in the exercise of a magistrate's or judge's discretion the sentence of imprisonment imposed for assault occasioning bodily harm will be suspended and sometimes it will not be suspended. The cases indicate that it is more likely to be suspended where the offender is young and a first offender. If the only criterion for detecting error is a comparison of this sentence with other sentences for the same offence, the sentence imposed by the magistrate would not be manifestly excessive. It was within the range of appropriate sentences for offences of this type.

34 Next I turn to consider the place which the appellant's criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender. In these respects the appellant says that the magistrate erred by finding that the offence was at the upper end of the range of seriousness for offences of this type and in failing to place sufficient weight on the appellant's personal circumstances.

35 As I said to the appellant's counsel during the course of the hearing, I do not have difficulty with the magistrate's characterisation of the objective seriousness of the offence. To kick a man with a full force kick to the front of his face whilst that man is on the ground and not apparently trying to get up, so as to cause facial fractures that required plating, is self-evidently a serious example of the offence of assault occasioning bodily harm. The question is whether the magistrate erred in failing to take account of or failing to give sufficient weight to mitigating factors which reduced the seriousness or the objective seriousness of the offence?

36 Such matters would include that the appellant was a young man with little experience as a crowd controller. He was the subject of violence and threats from the complainant, not just once but, on a number of occasions. He also saw the complainant assault another member of the staff of crowd controllers. The appellant over-reacted, apparently out of panic and fear that the complainant, if left to his own devices, was going to engage in more violence. The appellant was in a stressful situation.

37 The respondent, quite rightly, says that crowd controllers are expected to be able to deal with these situations without escalating them. However, the appellant was inexperienced and, from my observations of the surveillance footage, there appears to have been little if any direction, planning and control by the more senior crowd controllers on duty. The appellant was left to make his own decisions, in a volatile situation not of his own making.

38 The fact that he made the wrong decision is beyond doubt but the offence was not planned and was an over reaction to violence and threats from the complainant rather than the consequence of self motivated violent inclinations of the appellant. There is little chance of the appellant being involved in any like incidents in the future.

39 When these circumstances are taken into account and given their proper weight, it is my view that it was an error of the magistrate not to afford the appellant, who was relatively young and who generally had good personal antecedents, the opportunity of serving his sentence in the community. In saying the appellant should have been given the opportunity of a suspended sentence I am not in any way suggesting that general deterrence was not a relevant sentencing consideration or that courts should not be doing all they can to stem the violence that occurs in conjunction with licensed premises and the service of alcohol.

40 Indeed it is my general view that where unlawful assaults occur, resulting in serious injury, then a sentence of immediate imprisonment is the appropriate penalty. However, given the unusual facts of this case that I have just outlined and consistent with authority and the provisions of the Sentencing Act which establish that a suspended sentence is a deterrent penalty and the second-most serious penalty which can be imposed by the courts, it is my view that the magistrate erred in this case: R v Liddington (1997) 18 WAR 394.

41 Whilst general deterrence is of course an important factor, regard must be also had to other things, including the proper rehabilitation of the offender and, in the case of a first offender, to the question of whether that person is likely to benefit from an exercise of clemency to the ultimate benefit of the general public. Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289 [28] and the cases therein cited. Whilst the appellant was not strictly speaking a first offender, he had no relevant prior convictions and this was a matter greatly in his favour.

42 Neither, in coming to this conclusion, am I critical of the magistrate who had a difficult sentencing task before him.

43 I have considered at length whether the circumstances justify me in finding that it was an error not to suspend the appellant's sentence or whether it was simply an exercise of the sentencing discretion in a manner different from the way in which I would now exercise it. That has been a difficult matter for me to determine. In the end I have decided, by the barest of margins, that it was an error on behalf of the magistrate, given particularly that the magistrate sentenced the appellant on a more severe view of the facts, that is on the basis that there were two kicks to the face not one, and given that the magistrate does not appear to have appropriately taken into account in determining the seriousness of the offence, the mitigating factors to which I have just referred.

45 As there is no appeal against the length of the sentence I would order that the sentence of 9 months' imprisonment be set aside and its stead the appellant be sentenced to 9 months' imprisonment to be suspended for a period of 12 months. (At the request of the appellant's counsel that time already spent in custody be taken into account, the appellant was resentenced to 7 1/2 months' imprisonment to be suspended for a period of 12 months.)