STOKES -v- AUCKLAND [2012] WASC 2 (10 January 2012)

6 months and 1 day' imprisonment suspended for 6 months

Committed 31 December 2009 - aggravated assault occasioning bodily harm

6 months and 1 day' imprisonment suspended for 6 months

Committed 31 December 2009 - breach of bail by breaching a protective bail condition

3 The suspended sentences expired on 4 May 2011. Accordingly, the offence committed on 12 April 2011 (which I will hereafter refer to as the April assault) was in breach of the suspended sentences and exposed the appellant to liability to be resentenced in respect of them.

4 The appellant first appeared on the April assault charge on 14 April 2011. The matter was then adjourned so that he could obtain legal advice. He appeared again on 21 April 2011 and entered a plea of guilty and the proceedings were adjourned to 26 May 2011 for sentencing.

5 On 26 May 2011, after hearing the facts and a plea in mitigation made on behalf of the appellant, the magistrate decided to activate the suspended sentences and impose a further sentence of imprisonment for the April assault. The sentences were as follows:

Committed 12 April 2011 - Aggravated assault occasioning bodily harm

Committed 27 November 2009 - Aggravated assault occasioning bodily harm

Committed 31 December 2009 - Breach of protective bail condition

Committed 31 December 2009 - Aggravated assault occasioning bodily harm

6 Accordingly, the total effective sentence was one of 22 months' imprisonment. The appellant was ordered to be eligible for parole and the sentence was backdated to 21 April 2011 to take into account time spent in custody.

7 The appellant filed an appeal notice on 8 August 2011 which referred only to the sentence of 16 months' imprisonment imposed on KA 11/1558. However, based on the content of the appellant's grounds of appeal and his written and oral submissions, it is clear that he is seeking to appeal his conviction for the April assault, his sentence for that offence and also the total effective sentence of 22 months' imprisonment.

8 The appeal notice was filed out of time and an application for an extension of time in which to appeal was also lodged. The appellant filed an affidavit in support of his application for an extension of time in which he stated that his reasons for the delay in bringing the appeal were that he is selfrepresented, has never prepared an appeal before, was in a state of shock following his sentence, was confused and did not know about the applicable time limits and was not advised by any lawyer as to his rights to appeal. I granted the extension of time on 29 August 2011.

9 On 19 September 2011, the appellant also filed an application to adduce additional evidence. The additional evidence comprises a statutory declaration dated 12 September 2011 made by the complainant. In it she states that she continues to be in a relationship with the appellant, has forgiven him and knows that he is making efforts to change his ways and make their relationship work.

10 At the time of the commission of the April assault the appellant was a 29yearold unemployed Aboriginal man living in the Kalgoorlie area. He had been in a de facto relationship with the complainant for approximately three years. The appellant had a significant history of alcohol and drug abuse and also of violence, including past violent offences against the complainant.

11 The facts of the April assault as read to the court by the police prosecutor on 26 May 2011 were as follows:

The facts are that on Tuesday, 12 April 2011 at 2.45 pm, the accused was at Ninga Mia Village with his de facto, Kylie Garlett, the victim in this matter. He was in his vehicle with the victim and they were talking in the back seat. The accused made a sexual remark about the victim's niece. This angered the victim and as a result she got out of the vehicle, began to walk away whilst swearing at the accused.

He approached her and began punching her in the head three or four times until she fell over. The accused then punched the victim in an upper cut style punch, dragged the victim by the hair to a nearby tap and began washing the blood off her head and then punched the victim another three or four times in the head and told her to get back into the vehicle.

The accused and [the] victim returned to the vehicle and [the] police arrived a short time later. He was located with the victim in his vehicle by police and arrested. He was taken to the police station, attempted to interview, however he refused and would not enter the video room. He was given a preliminary breath test, gave a reading of 0.173, three hours after being arrested. He gave no explanation (ts 2).

12 Photographs depicting the injuries that the appellant had inflicted on the complainant were provided to the magistrate and shown to the appellant. As the magistrate noted, it is apparent from those photographs that there was swelling to the complainant's mouth and eye, as well as abrasions and bruising to her forehead.

13 The appellant was represented on 26 May 2011 by an Aboriginal court officer who had a right of representation under s 48 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in respect to Aboriginal persons facing legal proceedings. On behalf of the appellant the following account of what had occurred in relation to the April assault was given:

In respect to the matter, he agrees that he started drinking about midnight the night before; says he's instructs me that he drank to about 2 pm the next afternoon, so he has basically drank from midnight till 2 pm the next afternoon with his de facto. Both were very intoxicated. He says his de facto started arguing with him. She tried getting out of the - sorry - she accused him of trying to get around with another lady and recalls getting into an argument with her. They both were in the vehicle at that stage, sitting in the back; says that the de facto wouldn't listen to him. He tried telling her that he wasn't making contact or eye contact with the other person; remembers her trying to walk off.

He went to speak to her to calm her down, says that his de facto tried hitting him and she was abusing him. He agrees he tried slapping her; says that he did slap her; agrees that he did hit her with an open hand a couple of times trying to settle her down. Now, he agrees that - he instructs me that she hit him and he agrees that he has then punched her. He has then grabbed hold of her and started - he doesn't describe it - it's described as a drag. He says he has grabbed her and pulled her. He didn't actually drag her on the ground. She was still walking, so he has grabbed hold of her, dragged her, which he describes as pulling her to the tap to wash her

HER HONOUR: By her hair?

STUBBS, MR: By the head, yes, to wash her face to try to calm her down and agrees that she was struggling with him and he instructs me that he (indistinct) punched his de facto two or three times in the face. That was at the tap. Now, a family member has got involved and he and the family member have started arguing and at that point, that's where the assault had stopped (ts 3 - 4).

14 It was submitted to the magistrate on the appellant's behalf, that he had previously performed well on the presentence order. It was said that he had undertaken alcohol, drug and domestic violence counselling and had successfully completed the presentence order before being placed on suspended imprisonment orders in November 2010. It was also noted that the appellant had completed 5½ months of the suspended imprisonment orders before they were breached by the commission of the April assault. It was said that the April assault was significantly influenced by alcohol and that the appellant had previously recognised that he had a problem with alcohol and made concerted efforts to avoid it.

15 It was submitted to the magistrate that the complainant wished to continue her relationship with the appellant. It was also suggested that at one stage she had indicated that she did not wish to proceed with charges. Nonetheless, the appellant had pleaded guilty at an early stage and this was said to be a reflection of his acceptance of responsibility and remorse for his conduct.

16 Her Honour stated that she considered the facts of the April assault to be very serious. In this regard she said:

What I have heard about the prolonged nature of the attack, the fact that you somewhat bizarrely dragged her to a tap and then continued to punch her, this all happening in front of family members. It all seems to me to be a disturbing example of an assault occasioning bodily harm and a serious one. You grabbed her and pulled her by the hair; whether you describe it as dragging or not, it seems to make little difference to me and you punched her numerous times. I have seen photographs of the injuries that she had. She had considerable swelling to her mouth, to her eye, as well as abrasions and bruising to her forehead.

In those circumstances, regardless of how it started, it seems to me that she was trying to walk away when you were the one that followed her and instigated this attack simply because she wouldn't listen to you in circumstances where you were so intoxicated, where you were both so intoxicated, it seemed to me that she was trying to do the right thing and that is get some distance between you.

I accept that there was an argument going both ways, but ultimately you are the one that had the upper hand physically and you inflicted those very serious injuries on her in a prolonged way. I take into account it's not suggested that you used any weapon, but I also note that the attack was only stopped when a family member intervened, so we don't know how much longer it might have continued. You do have a serious record for violence and particularly against your partner.

The other assaults of which you have been convicted happened in November and December of 2009 and they, again, were serious examples of assault causing bodily harm. You were dealt with by way of a presentence order initially and you lasted nine months on that order. That was supervised through community court and you certainly did well on that order and doing what was required of you from month to month.

You had bail conditions that meant you couldn't drink alcohol during that order, but when that order ceased in November, it appears that you did slip back into those old habits and start drinking again and you must have known at the time you decided to start drinking that enormous quantity of alcohol on this particular day and the night preceding what the possible consequences would be, given your prior history of violence in those circumstances. It's very unfortunate to see you back in court with a repeated assault against her.

I take into account that you did make efforts to abstain from alcohol after you completed that order, but at the time that you knew you still had that suspended imprisonment order hanging over your head by you choosing to drink that quantity, you were really leaving yourself open for the consequences that you face here today (ts 9 - 10).

17 Her Honour then considered the breach of the suspended imprisonment orders. She acknowledged that the court must make an order that the appellant serve the terms of imprisonment that were suspended unless she decided that it was unjust to do so in view of all the circumstances that had arisen or become known since the suspended imprisonment was imposed: s 80(3) Sentencing Act 1995 (WA). Her Honour noted that the suspended imprisonment order only had a short time to run before the breach occurred. She then said:

In relation to the short period of time that was left to run, I accept that, however, I have to note that I did reduce the length of the suspended imprisonment order to only six months and I also reduced the term of imprisonment that I would otherwise have given you for the fact that you had lasted so long on a presentence order.

In my view, I can't really give you much credit for having made it five months, five and a half months through the order when really that was reduced to reflect the overall circumstances in any case (ts 11).

18 Her Honour then turned to the April assault and the question of the appropriate penalty. She concluded that it was a very serious example of an assault occasioning bodily harm that was aggravated by the victim being the appellant's partner. Her Honour noted the prevalence of offences of this nature in some communities, particularly where alcohol was involved. She noted the importance of both general and specific deterrence in such circumstances. She said that for those reasons and to afford some protection to the community, and in particular the appellant's partner, a term of imprisonment was the only appropriate option. She also concluded that it was not unjust to activate the suspended terms of imprisonment.

19 Her Honour noted the attitude of the complainant and said:

I have read the material that has been supplied by you and by your partner and whilst I accept that she may be reluctant to proceed with - or may have been at some point reluctant to proceed with these charges and that she is willing to forgive you and put herself back in that relationship, it is my view, and it is one that is supported by authority from the Supreme Court, that that is not a matter that I can take into account in mitigation to any significant degree. In fact, in my view, it makes her more vulnerable to future violence that she is willing to put herself back into that relationship (ts 11 - 12).

20 In imposing the sentences her Honour referred to the need to take into account totality. She referred to the importance that the sentences reflect the seriousness of the offending conduct but also noted that the appellant is still young with prospects for rehabilitation on release.

21 Her Honour took into account that the maximum penalty that can be imposed in the Magistrates Court for offences of aggravated assault occasioning bodily harm is 3 years but also that the maximum statutory penalty for such an offence is one of 7 years. She took into account the appellant's early plea of guilty in imposing a sentence of 16 months' imprisonment for the April assault.

22 In respect of the suspended sentences, those sentences were activated and the first sentence of 6 months was made cumulative on the 16month sentence for the April assault with the other two sentences being concurrent. These orders of concurrency appear to reflect the magistrate's concern to ensure that the total effective sentence was not disproportionate to the total criminality.

23 In substance, the appellant alleges that his plea of guilty was made under duress and did not reflect an acceptance by him of the facts as alleged by the prosecution. He submits that the statement of the complainant was taken by the police when she was drunk and was therefore unreliable. He says that there was inconsistency between a medical report and the statement of material facts. He says that he did not agree with the facts as stated to the court on 26 May 2011. He says that he entered a plea of guilty on the basis of advice from the Aboriginal court officer to the effect that the magistrate was aware of his performance on the presentence order and that if he pleaded guilty he was likely to receive a shorter term of imprisonment.

24 Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against a decision of a Magistrates Court 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove and Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).

25 Before an appellate court will set aside a conviction based on a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa Steytler J referred to three wellrecognised circumstances in which a plea of guilty will be set aside:

1. Where the appellant did not understand the nature of the charge or did not intend to admit guilt.
2. If upon the admitted facts the appellant could not in law have been guilty of the offence.
3. Where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like [20].

26 It is clear from the transcript of the sentencing proceedings that the Aboriginal court officer was well acquainted with the appellant and had represented him on other occasions. The appellant was present throughout the reading of the facts and the delivery of a comprehensive plea in mitigation. At one stage the appellant raised his hand and gave further instructions to the Aboriginal court officer. The officer then said:

My client has just advised me that he realises the thing that is stopping him is the anger and he accepts that he has to get rid of that anger and allow that anger to stop and that is preventing him from going anywhere (ts 7).

27 There was not at that stage, or at any stage during the proceedings, any indication from the appellant that he disputed the facts.

28 There is nothing in the transcript nor is there any additional evidence, to support any suggestion that the appellant did not understand the nature of the charge or did not intend to admit guilt. Nor is there any support for the suggestion that he disputed the alleged facts. On the face of the transcript, the plea of guilty appears to have been an entirely voluntary and considered one made in the face of a strong prosecution case. The appellant on this appeal has not suggested that he had any defence to the charge, rather his complaint appears to be that he had an expectation that a lower sentence would be imposed.

29 The complainant had provided a signed statement to the police on 12 April 2011 setting out a detailed account of the assault against her. It was apparent from the stated facts that there were other witnesses to the assault. The facts as read to the court give an accurate reflection of the complainant's statement. It is to be noted that the complainant's statutory declaration dated 12 September 2011 filed in respect of this appeal, does not resile from her earlier statement and maintains that the appellant had hit her four or five times. Thus, notwithstanding that she says that she has now forgiven him, there is nothing to suggest that the account that she gave to the police was in any way wrong.

30 The appellant has complained of an inconsistency between a medical statement and the statement of material facts. No medical statement was referred to in the Magistrates Court and none has been produced on this appeal. It was not suggested in the proceedings before the magistrate that there was any such inconsistency. On the other hand, photographs were tendered which supported the allegation that the complainant had sustained injuries in the assault.

31 There is no support for any suggestion that the appellant was the victim of any improper pressure, fraud or intimidation that induced him to enter his plea of guilty. It should also be noted that his plea of guilty and acceptance of the facts as alleged was consistent with the presentence report. That report, which is dated 28 April 2011, stated that the appellant agreed with the statement of material facts, that he was intoxicated at the time but that he accepted that this was no excuse.

32 In the circumstances, the appellant has not demonstrated that there has been a miscarriage of justice in respect of his conviction and leave to appeal in that regard should be refused.

33 The appellant alleges that the sentence of 16 months for the April assault was manifestly excessive. He also asserts that the total effective sentence of 22 months was disproportionate to the overall criminality. He submits that any sentences of imprisonment activated in respect of the suspended imprisonment orders should have been made wholly concurrent having regard to his performance during the period of suspension and his previous compliance with the presentence order. The appellant also alleges that the magistrate made a number of specific errors, including that she took into account the maximum statutory penalty for the offence.

34 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). A claim of manifest excess depends on establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.

35 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232 [12] [13] (McLure P).

36 The maximum penalty for the offence of aggravated assault occasioning bodily harm is 7 years' imprisonment: s 317(1)(a) of the Criminal Code (WA). The summary conviction penalty, which applied in this case, is 3 years' imprisonment and a fine of $36,000. The summary conviction penalty is a jurisdictional limit; that is, it is the maximum penalty that can be imposed by a magistrate when sentencing an offender on summary conviction. When sentencing an offender for an offence that can be dealt with either summarily or an indictment, a magistrate is entitled to have regard to the maximum statutory penalty notwithstanding that he or she cannot impose a penalty that exceeds the jurisdictional limit: Wiltshire v Mafi [2010] WASCA 111 [26]. Accordingly, the magistrate properly had regard to the maximum penalty of 7 years' imprisonment whilst correctly recognising that any sentence she imposed had to be within the applicable jurisdictional limit of 3 years.

37 As to the seriousness of the appellant's conduct, the magistrate concluded that the April assault was very serious and disturbing in its circumstances. I am unable to conclude that the magistrate was in error in that regard. The offence could properly be described as one of domestic violence which occurred in a context of repeated violent assaults against the same victim over a period of time. On this occasion, the appellant had instigated the attack and continued it. The attack was a prolonged one involving slaps and punches and the dragging of the complainant by her hair or head. The appellant had then placed the complainant's head under a tap and washed blood off her before commencing to punch her again. It was clear from the description of the events that the appellant was physically dominant and continued his assault upon the complainant until another person intervened. The offending was also aggravated by the fact that the appellant committed the offence notwithstanding previous court orders imposed for similar offending. Suspended sentences in respect of such offending were still current at the time. This demonstrated a disregard for the law and a need for a sentence to be imposed that would act as a personal deterrent.

38 As to the personal circumstances of the appellant, the magistrate accepted that he had entered an early plea of guilty to the April assault and was entitled to a reduction in his sentence. There were also indications that he had expressed remorse to the author of the presentence report and submissions had been made in that regard in the sentencing proceedings. As against that, the appellant has, through these appeal proceedings, sought to dispute the validity of his conviction.

39 Other than the early plea of guilty, there was little else that could mitigate the appellant's conduct. He could no longer claim the benefit of youth and came before the court with a significant prior history of offending, including previous offences of violence for which he had served terms of immediate imprisonment. The prior convictions demonstrated that his offending in the present circumstances was not out of character and reinforced the need for personal as well as general deterrence.

40 It is true that the appellant had previously complied with the terms of a presentence order and this was indicative of some past willingness to address the causes of his criminal conduct. However, compliance with the presentence order had been taken into account by the imposition of suspended terms of imprisonment for the earlier offences. Were it not for his good conduct on the presentence order, it would appear that the magistrate may well have imposed sentences of imprisonment to be immediately served for the earlier offences. However, that previous good conduct could not justify a conclusion that no further punishment in respect of the earlier offences was deserved even in the event of breach of the suspended imprisonment orders. What made the breach particularly serious was that it involved offending of a similar character to that which had previously occurred. In these circumstances, the magistrate was entirely justified in coming to a conclusion that it would not be unjust to activate the suspended sentences. Notwithstanding this, the magistrate recognised and gave some weight to the positive efforts that had previously been made by the appellant.

41 The fact that the April assault occurred when the appellant was heavily intoxicated was not something that mitigated the offence. It is apparent that the appellant was acutely aware that alcohol was a risk factor in respect of his past offending behaviour. As her Honour observed, the appellant must have known what the possible consequences of drinking to excess would be given his prior history of violence in such circumstances. There appears to be no doubt that in respect of the April assault, the intoxication of the appellant was selfinduced.

42 The magistrate was told that the complainant had reconciled with the appellant and that the relationship was a continuing one. The statutory declaration filed by the appellant on this appeal only serves to confirm that that continues to be the position. The magistrate stated that this factor has little impact by way of mitigation. Her Honour was correct in that regard. In The State of Western Australia v Cheeseman [2011] WASCA 15 McLure P said:

The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence [3].

43 An otherwise appropriate penalty should not be reduced on account of an expression of willingness on the part of the complainant, for whatever reason, to forgive the offender and continue a relationship with him.

44 As to applicable standards of sentencing, there is no clear range for sentences for assaults occasioning bodily harm as such offences involve a wide variety of circumstances. Sentences for such offences have extended from 6 months' suspended imprisonment to 2 years' immediate imprisonment: Holden v The State of Western Australia [2009] WASCA 50 [43]. However, it should be noted that that range related to cases that did not involve aggravating circumstances and where the maximum penalty was one of 5 years' imprisonment on indictment. See also Mourish v The State of Western Australia [2006] WASCA 257; Cheeseman [73] [79]; Ward v The State of Western Australia [2011] WASCA 172 [87].

45 Three comparatively recent cases afford some assistance in determining whether the sentences imposed in this case are excessive. In Paskov v Hull [2008] WASC 163 the appellant was a 36yearold man with alcohol and drug abuse problems who was sentenced to a total effective sentence of 2 years and 2 months' imprisonment. This comprised two sentences of 12 months' imprisonment to be served cumulatively which were imposed for two assaults occasioning bodily harm committed on a de facto partner together with a further 2 months' imprisonment cumulative for other offences. The appellant in that case had pleaded guilty in the Magistrates Court. The first offence involved the appellant pushing the victim's head into a window as she attempted to leave their house. She was then dragged to the front door and kicked three times in her back and rib area and also punched in the head a number of times causing her head to hit a railing and which caused her to pass out. The second assault occurred approximately six months later when the appellant was on bail with protective bail conditions. The appellant assaulted the victim by dropping her on the ground and kicking her repeatedly in the rib area. He also used a ring on his left hand to gouge her eye, causing bruising and swelling. The appellant in that case was on a community based order at the time of the offences. He had previous convictions for assault occasioning bodily harm and breach of a violence restraining order in respect of a former partner as well as other convictions. Hasluck J concluded at [55] that the individual and aggregate sentences imposed in that case could not be characterised as manifestly excessive and dismissed the appeal.

46 In Morgan v Kazandzis [2010] WASC 377; (2010) 206 A Crim R 235 the appellant was an Aboriginal man in his forties living in a remote community. He had a criminal history which included offences of burglary and aggravated assault occasioning bodily harm but had not previously been sentenced to any term of imprisonment. He appealed convictions and sentences imposed for three assault offences following two separate hearings in 2009. The first two offences of aggravated assault occasioning bodily harm were committed on the appellant's much younger, pregnant de facto partner. Both parties were affected by alcohol at the time of each offence. Another conviction for aggravated common assault was committed on a different woman. The assaults on the de facto in that case involved slapping her in the face, kicking her in the head and stomping on her head while she was on the ground. The appellant also lay on top of her with his hands around her head and face and blocked her breathing. In the second offence the appellant assaulted the complainant when he intervened to break up a fight between the complainant and another woman. On both occasions the complainant sustained lacerations, bruising and some bleeding. The magistrate who sentenced the appellant in that case characterised the offences as vicious assaults which warranted immediate terms of imprisonment. The appellant was sentenced to 8 months' and 15 months' imprisonment respectively (to be served concurrently) for the first two offences and 9 months' imprisonment cumulative on the third offence, making a total effective sentence of 24 months' imprisonment. Appeals against the sentences were dismissed. Specific deterrence of the offender was considered to be a necessary and essential ingredient of the sentence. E M Heenan J partly allowed the appeal against sentence in respect of the third offence by ordering partial concurrency of the 9month sentence of imprisonment on that offence for reasons of totality, the effect being to reduce the total effective sentence to 18 months' imprisonment.

47 In Leeder v Moss [2011] WASC 196 the 26yearold male appellant had a history of mental illness. Despite a significant record of prior offending, the appellant had never previously been imprisoned. He was sentenced to an aggregate sentence of 27 months' imprisonment for a variety of offences which included an aggravated assault against his de facto wife and an aggravated assault occasioning bodily harm against his de facto partner's mother who had intervened when her daughter was being assaulted. These assault offences were committed while the appellant was subject to a suspended imprisonment order for an earlier aggravated assault against his partner. He was also on intensive supervision orders for another aggravated assault occasioning bodily harm on a third person as well as criminal damage charges. An appeal in that case against the aggregate sentence was dismissed. However, the appeal was partly successful to the extent that E M Heenan J found the magistrate had failed to give the appellant credit for a period spent in custody. His Honour also concluded that the magistrate did not err in deciding that the activated term of suspended imprisonment should be served cumulatively upon one or other or both of the two sentences for the assault offences [14].

48 Having regard to the facts of the above cases as well as the reviews undertaken by the Court of Appeal in Mourish and Cheeseman the sentence of 16 months' imprisonment imposed for the April assault, while at the higher end of the range for offences of this kind, cannot be said to fall outside the proper exercise of sentencing discretion. It was properly open to the magistrate to come to the conclusion that a sentence of this type and length was required to reflect the serious circumstances and the need for personal and general deterrence.

49 As regards totality, it should be noted that the earlier offences involved discrete and distinct events that were unconnected to the April assault other than they were offences of a similar type committed against the same complainant. The offences as a whole, including the April assault, represented three different incidents on different days involving violence against the de facto partner. In the circumstances, cumulative sentences would normally be entirely appropriate. As I have noted earlier, the fact that the appellant had performed well on the previous presentence order had already received appropriate recognition in the length of the suspended sentences. In my view, the magistrate was entirely correct in reaching the conclusion that it was not unjust to activate the suspended sentences.

50 The remaining question was whether, if cumulative sentences were imposed for each of the offences, the total effective sentence would be disproportionate to the total criminality. This was a matter that the magistrate specifically took into account. It would appear to be the justification for ordering that two of the sentences be served concurrently. In my view, however, her Honour was justified in making one of the sentences of 6 months' imprisonment cumulative and imposing a total effective sentence of 22 months' imprisonment. I do not regard the total effective sentence to be disproportionate to the total criminality.

51 As regards the appeal against his conviction, the appellant has not established a basis for setting aside the plea of guilty nor any circumstances that show that there has been a miscarriage of justice. Accordingly, the grounds relating to the appeal against conviction do not have reasonable prospects of success. Leave must therefore be refused and those grounds dismissed.

52 In respect of the appeal against sentence, having regard to the maximum statutory penalty, applicable sentencing standards, the seriousness of the criminal conduct and the personal circumstances of the appellant, the sentence of 16 months' imprisonment imposed for the April assault was not manifestly excessive nor subject to any express error. Nor was the total effective sentence of 22 months' imprisonment disproportionate to the total criminality. It was properly open to the magistrate to order that one of the activated sentences of suspended imprisonment be cumulative upon the April assault offence. As none of the grounds relating to the sentence have reasonable prospects of succeeding, leave in respect of them must be refused.