Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Prosecution appeal against sentence - Assault occasioning bodily harm and grievous bodily harm - 8 months' imprisonment - Discount for fast­track guilty plea - "Range" of sentences - Conduct and consequences at lower end

1 WHEELER JA: On 4 April 2008, the respondent pleaded guilty to an indictment containing two counts of assault occasioning bodily harm and one count of doing grievous bodily harm. He was sentenced to 4 months' imprisonment in respect of each count of assault occasioning bodily harm and 8 months' imprisonment in respect of the count of doing grievous bodily harm, with all sentences to be served concurrently.

2 This is a State appeal against those sentences. The following outline of the facts is taken from the learned sentencing judge's sentencing remarks, supplemented by matters referred to by counsel which do not appear to have been disputed. In addition, we have viewed security camera footage which captures count 1 and part of count 3 and what it shows is also mentioned below.

3 The respondent was employed as a floor manager at a tavern. It appeared he had been so employed for a period of approximately two weeks, and that he had not received training in relation to dealing with intoxicated persons. At the end of a night of trading, he was standing outside the tavern, at the door. He did not appear to be under any particular stress at this time. He allowed some young women into the tavern, at closing time, in order to allow them to use the toilet. The victim of counts 1 and 2, Mr Alann Geeves, also wanted to enter the tavern to use the toilet, but the respondent did not allow him to do so. It appears that Mr Alann Geeves was unhappy about not being permitted inside and said something insulting to the respondent. Having done so, he then turned to walk away and the respondent pushed him hard in the back, causing him to fall down some steps to the ground. Alann Geeves injured his knees and had pain, bruising and swelling to the right knee in particular. The respondent then walked quickly up to him and punched him to the face, causing him to fall to the ground unconscious. He recovered consciousness a short time later.

4 The brother of Alann Geeves, Mr Glenn Geeves, then approached the respondent. There were tendered to his Honour a number of witness statements. Those statements contain a variety of different assertions about how quickly Glenn Geeves approached, what, if anything, he said at the time, and what, if anything, he had in his hands. The sentencing judge made no finding other than that there was an approach to the respondent and that Glenn Geeves had a bottle in his hand at the time. The respondent punched him with a clenched fist to the head, Glenn Geeves fell on to the concrete, hit his head, and began to convulse. All the events just described happened in quick succession.

5 Following his hospitalisation it appeared that, ultimately, the injuries he suffered were not life-threatening; however, Glenn Geeves has now a permanent injury to his health, being permanent moderate hearing loss. That, in turn, has adversely affected his employment and his enjoyment of life.

6 So far as the respondent was concerned, he was a man of 24 years of age and referees described him as a hard worker and a person of good character. On the day in question he had been working what his Honour described as a 'long day' in the pool construction industry and then long hours at the tavern. His only previous convictions were for minor traffic offences, and for one offence of possession of a prohibited drug for which he received a fine. The learned sentencing judge accepted that the respondent was remorseful. The pre-sentence report indicates that in relation to the first two counts, the respondent's explanation was simply that the respondent found Alann Geeves' language provocative, and simply lost his temper. He accepted that he should have remained calm. So far as the grievous bodily harm offence was concerned, he told the community corrections officer that because of the bottle in Mr Glenn Geeves' hand, he had some fear for his safety; however, by his plea, he of course accepted that he was not acting in self-defence. The respondent pleaded guilty under the fast-track system.

7 His Honour concluded, in my respectful view correctly, that the offences were so serious that the only appropriate disposition was a term of imprisonment. He considered that although the youth, good character and good prospects of the respondent were factors favouring suspension of any term of imprisonment, the seriousness of the offences and the need for general deterrence were such that it was not open to his Honour to order suspension. He did not expressly explain why it was that he made all terms of imprisonment concurrent, but it is to be assumed that he did so for totality reasons.

8 Turning to the grounds of appeal, there are two complaints of specific error and one ground which asserts simply that the sentences individually and in total were manifestly inadequate having regard to the nature of the offending.

9 As the argument developed, the State appeared to accept that ground 1, which asserted that his Honour was in error in ordering that the terms of imprisonment on all three counts be served concurrently, was, in effect, no more than another way of asserting that the sentences imposed did not, in total, adequately reflect the criminality of the respondent's offending. That assertion forms part of ground 3, and I deal with it under that head. The written submissions deal at some length with the so-called "one transaction" rule. However, as his Honour made no reference to that rule in sentencing the respondent, it is not necessary to deal with it, nor is it necessary to deal separately with ground 1.

10 So far as ground 2 is concerned, it is asserted that his Honour erred in discounting each of the sentences by one-third for the fast-track plea of guilty. It is asserted that such a discount was excessive having regard to the strength of the prosecution case. That ground cannot be made out. The relevant principles are clear. Other than in an exceptional case, some discount for a plea of guilty should be allowed even in a case in which the plea of guilty is unavoidable and even where unaccompanied by any real remorse or acceptance of responsibility: Moody v French [2008] WASCA 67 [38]. Ordinarily in this State fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%. The amount of the reduction is discretionary, and the discretion of sentencing judges must be respected by appellate courts: Moody v French [37].

11 Views might differ about the strength of the State case in relation to these matters; it certainly appears to have been a strong case as to count 1. However, there is no principle that requires a lesser discount to be given wherever the State case appears to be strong. In every case, what weight is to be given to a plea of guilty will depend upon an evaluation of its worth in all the circumstances. The Sentencing Act 1995 (WA) indicates only that the earlier a plea of guilty is made, the greater the mitigation (Sentencing Act s 8(2)). In the present case, the plea was made on the fast-track; that is, it was made at the earliest opportunity. His Honour accepted that it stemmed from real remorse and acceptance of responsibility. It was open to his Honour to allow a discount of one-third, as he did.

12 There are two aspects of the argument addressed to us in relation to ground 3, which asserts that the sentences individually and in total were manifestly inadequate. The first aspect, which was developed only in oral submissions on behalf of the State, suggested that firmer sentences were required because of increased prevalence of offences of this kind. However, as developed, the submission was clearly a submission, not that offences of this kind were in fact increasing in prevalence, but that there was a community perception of such increase. The difficulty with such an argument is that research demonstrates that the public perceives crime to be constantly increasing, even when it is not, overestimates the proportion of crime that involves violence, and underestimates the severity of sentencing practices (see most recently K Gelb, 'Myths and Misconceptions; Public Opinion v Public Judgment and Sentencing' (Research Paper, Sentencing Advisory Council, Victoria, 2006)). No statistical material was presented to us to indicate whether assaults of any particular type were in fact increasing in frequency, and so this aspect of the submission is unsustainable.

13 It appears from the written submissions that although the ground on its face relates to the sentences in respect of each count, only those in relation to counts 2 and 3 are said to be manifestly inadequate.

14 So far as count 2 is concerned, that was an offence of assault occasioning bodily harm. In the absence of circumstances of aggravation, the maximum penalty for the offence of assault occasioning bodily harm is 5 years' imprisonment. On summary conviction, it is 2 years' imprisonment. As a result of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the practical maxima are 3 years 4 months and 16 months' respectively.

15 For assault occasioning bodily harm, it is the appellant's assertion that the "range" of sentences for assault occasioning bodily harm, after the coming into operation of the transitional provisions, has generally been between 6 and 18 months' imprisonment. In support of that conclusion, [12] of Mourish v The State of Western Australia [2006] WASCA 257 is cited. However, McLure JA in that case did not assert that that was the "range" of sentences; rather, her Honour simply examined a number of cases dealing with that offence, with a view to determining whether the particular sentence imposed on Mourish (of 2 years' imprisonment suspended for two years) was manifestly excessive. Her Honour held that it was not.

16 It has been observed in other cases that it is difficult to discern any tariff for assault occasioning bodily harm: Kilner v The Queen [1999] WASCA 189 at [21] per Ipp J. The cases considered in Kilner demonstrated a range of penalties from 8 months to 2 years' imprisonment, prior to the transitional provisions, which would equate to a range of just over 5 months to 1 year 4 months. Further, it should be noted that the cases surveyed in Kilner were generally of a very serious nature, involving the use of implements or weapons of some kind and some of them involving a degree of persistence.

17 The sentence imposed in relation to the assault occasioning bodily harm in the present case was a little lower than the bottom of the range identified in Kilner. However, when one considers the physical acts of the respondent in the present case, they appear to be of a less serious nature than the acts which made up the assaults occasioning bodily harm which were discussed in Kilner. Further, although Alann Geeves suffered a brief period of unconsciousness, and although it is plain that the potential consequences of the respondent's acts were serious, the actual bodily harm occasioned was of a kind which could be characterised as "moderate", within the range of bodily harm cases. Having regard to the respondent's good antecedents and apparent insight into his loss of temper on this occasion, it appears to me that the sentence in respect of count 2 was not inadequate.

18 So far as count 3, the grievous bodily harm, is concerned, the maximum penalty for grievous bodily harm is 10 years' imprisonment. The appellant's submissions assert that a range of 3 to 5 years (that is, 2 years to 3 years 4 months post-transitional provisions) "was identified for an offence of doing grievous bodily harm, before the maximum penalty in the Criminal Code ... was increased from 7 years to its current maximum of 10 years imprisonment". The sole authority cited for that proposition is The State of Western Australia v Strawbridge [2005] WASCA 201 at [13] per McLure JA.

19 However Strawbridge was concerned, not with an offence of doing grievous bodily harm pursuant to s 297 of the Criminal Code (WA), but with the more serious offence of unlawfully wounding with intent to maim, disfigure or disable or to do grievous bodily harm contrary to s 294(1) of the Criminal Code, which carries a maximum penalty of 20 years' imprisonment. It was a case in which the respondent to that appeal had bitten off a part of the complainant's nose, resulting in more than six operations in an attempt to achieve reconstruction of the nose. In that context, in a discussion of various cases which involved a variety of different offences, McLure JA observed that in a review of the relevant cases, the court in the case of Bockfuss v The Queen (Unreported, WASCA, Library No 950063, 22 February 1995) had identified a sentencing range of between 3 to 5 years for the crime of unlawfully doing grievous bodily harm. That observation was, of course, correct. The court had identified such a range. However, in order to consider whether that "range" is in any way relevant to the present case, it is necessary to examine the cases with which the court was concerned in Bockfuss.

20 Bockfuss was a case concerning an attack, motivated by jealousy, involving a total of six stab wounds. One of the stab wounds caused the complainant's lung to be punctured and collapse and, although emergency surgery saved his life, he was left with limited use of his left arm and hand and with constant pain. In order to find a range appropriate to a case of that kind, the court considered the following cases:

• The Queen v Whiteman (Unreported, WASCA, Library No 8297, 11 June 1990). This involved three serious and life threatening stab wounds.
• Jones v The Queen (Unreported, WASCA, Library No 920406, 31 July 1992). This involved an attack by a group of persons, including assaults on the complainant with sticks and kicking him in the head while he was lying on the ground. There was a depressed fracture of the bone cavity around the complainant's eye, which required plastic surgery, and the risk of permanent damage to vision in that eye.
• Munmeri v The Queen (Unreported, WASCA, Library No 8746, 1 March 1991). This involved a punch and the victim hitting his head on the ground. However, the punch was inflicted with such force that it knocked the victim off his feet and, following the punch, the offender kicked the victim in the head. The injury suffered was massive and life-threatening brain trauma which left the victim with severe and permanent disability.
• Eades v The Queen (Unreported, WASCA, Library No 8205, 20 April 1990). This was an attack upon the offender's former de facto wife with a piece of wood. She was rendered unconscious, suffered two fractured ankles, a fractured wrist and a fracture to the base of the skull.
• Ellis v The Queen (Unreported, WASCA, Library No 930602, 5 November 1993). After the complainant had punched the offender, the offender returned to the hotel with her brother who was armed with a tyre lever. The offender, during the course of an altercation, produced a fully loaded pistol and fired seven times in the general direction of the complainant, one bullet entering the complainant's leg.
• The Queen v Lloyd (Unreported, WASCA, Library No 8094, 28 February 1990). A taxi driver had taken the offender's watch as security while the offender went upstairs to obtain some money with which to pay the fare. However, the offender in fact obtained a kitchen knife which he then used to stab the taxi driver, puncturing his intestines and gall bladder and lacerating his liver.

21 The above cases generally demonstrate the range of conduct, and the range of injury, which is found towards the upper end of the scale of offences of grievous bodily harm. While the doing of grievous bodily harm to a person is necessarily serious, the single punch thrown by the respondent, and the moderate hearing loss which resulted, are at the lower end of the possible range, both of conduct and of consequence. This case is not comparable with any of the cases discussed in Bockfuss. It is clearly not comparable with Strawbridge itself, which involved an offence of a different kind. It is unfortunate that, having asserted that the sentence in relation to count 3 is manifestly inadequate, so as to reflect error, the State has seen fit to support that assertion with authority unrelated to offences which are truly of a comparable kind, either in terms of conduct or in terms of consequence.

22 The two cases which I have found which appear to be towards the lower end of the range for grievous bodily harm are Etrelezis v The Queen [2001] WASCA 327 (which is referred to by the respondent) and Clements v The State of Western Australia [2006] WASCA 69. In the former case, the appellant had reacted to a head butt by punching the complainant whilst holding a glass. The complainant suffered a significant eye injury which would have been permanent had he not received medical treatment. Although he was young and of good character, he was not entitled to any discount for a plea of guilty, since he had gone to trial. On appeal, his sentence, which had initially been a custodial term, was substituted with a sentence which under the transitional provisions would now equate to one of 2 years' imprisonment suspended for 12 months.

23 Clements was also a case involving a glass. The complainant there had been providing security at a function and had been the subject of a degree of continual harassment and some threatening behaviour from a group of men. When the complainant went to remove one of them, the appellant threw broken glass at the complainant's face. The complainant lost his right eye as a result of those injuries. In that case, although the offender was young and had been remorseful and entered a plea of guilty, it was noted that he was aware that the glass was broken when he threw it, and that he threw it from short range and at a crowd controller who was a person belonging to a vulnerable group. A sentence of 2 years with parole eligibility was upheld.

24 In assessing the sentence imposed on this respondent, it must be remembered that it is a serious step to send a young person to jail, particularly where the person has not previously been imprisoned. A term

of imprisonment is, by statute, the sentence which can only be imposed if the court is satisfied that the seriousness of the offence is such that only imprisonment can be justified, or that the protection of the community requires that step, and the court must give reasons for reaching that view (s 6, s 35 Sentencing Act). Merely to demonstrate that the conduct involved in an offence is serious, and that the consequence of the conduct is serious, does not assist in a case such as the present in demonstrating that his Honour erred in the length of the term which he imposed. The finding that the conduct and/or consequence was serious, was a necessary prerequisite to the making of any order for immediate imprisonment, of whatever length.

25 The sentence of 8 months' imprisonment was a significant sentence. In my view, it has not been demonstrated that the sentence was so low as to manifest error.

26 It remains only to consider whether the overall sentence imposed by his Honour adequately reflected the total criminality of the respondent's conduct. On the one hand, the conduct occurred within a short space of time and appears to have occurred at a time when the respondent was under some degree of stress (notwithstanding that that stress was objectively not of the victims' making). On the other hand, he had deliberately pursued the first victim, Mr Alann Geeves, in order to assault him more than once, and had offended against two separate victims. Notwithstanding his youth, his plea of guilty, and his apparent remorse and degree of insight into his behaviour, it seems to me that in those circumstances an overall sentence of 8 months' imprisonment was a lenient one. It should be regarded as being at the very bottom of the range of sentences appropriate to a course of conduct of this kind, having the consequences which occurred in this case. However, although I would regard it as lenient, it is not, in my view, so lenient as to manifest error. I would therefore dismiss the appeal.