Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Respondent convicted of two counts of deprivation of liberty, assault occasioning bodily harm and threatening unlawfully to kill - Young offender, fast-track pleas of guilty, cooperation with police, remorse and had spent about 4 months in custody on remand - Whether open to sentencing judge to impose a fine for the assault and suspended terms of imprisonment for the other offences

Criminal Appeals Act 2004 (WA), s 41(1)(a), s 41(4)(a)

Sentencing Act 1995 (WA), s 41(2)(b), s 41(5), s 76(1), s 76(2), s 76(3)(b), s 87

Cook v The Queen [2001] WASCA 16

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

Etheridge v The Queen [2004] WASCA 152

Henderson v The State of Western Australia [2007] WASCA 198

Holden v The State of Western Australia [2009] WASCA 50

K v The State of Western Australia [2005] WASCA 131

Kilner v The Queen [1999] WASCA 189

Krencej v The Queen [1999] WASCA 20

Miller v The State of Western Australia [2009] WASCA 79

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

Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475

R v Liddington (1997) 18 WAR 394

R v Richards [1999] WASCA 105

R v Starr [1999] WASCA 119

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

Seroka v The State of Western Australia [2006] WASCA 284

Sinclair v The Queen (Unreported, WASCA, Library No 970088, 12 March 1997)

Snider v The State of Western Australia [2005] WASCA 61

The State of Western Australia v Anderson [2004] WASCA 157

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

The State of Western Australia v Camilleri [2008] WASCA 217

The State of Western Australia v Goodin [2008] WASC 116

The State of Western Australia v Tik [2009] WASCA 122

The State of Western Australia v Turaga [2006] WASCA 199

Thompson v Murray [2004] WASCA 168

Thorn v The State of Western Australia [2008] WASCA 36

Wiltshire v Mafi [2010] WASCA 111

1 McLURE P: I agree with the orders proposed by Buss JA generally for the reasons he gives. The sentencing judge provided no explanation for his conclusion that a fine was the appropriate penalty for the offence of assault occasioning bodily harm. It was not (and could not be) justified on totality grounds. A fine falls well short of appropriately recognising the degree, effect and context of the physical violence inflicted by the respondent on C. The type of sentence imposed by the sentencing judge for the assault offence is manifestly inadequate.

2 C was the victim of three of the four indictable offences for which the appellant was sentenced. She was subjected to significantly greater actual and threatened violence than K, the respondent's former partner from whom he was separated at the time of the offences. Against that background, it is difficult to understand the sentencing judge's explanation for suspending the terms of imprisonment for the offences of deprivation of liberty and threat to kill. The sentencing judge said:

The decision to suspend or not is difficult but you are I think a person in whom I can grant suspension, and primarily because of your acceptance of responsibility in these unique circumstances in which there was a matrimonial breakdown, if you like, that you have reconciled, that your partner wants you back, that there is a child of your union and that you are a person who can get employment readily within the community and thereby if the system can rehabilitate you to assume full responsibility for your family through looking after them financially and by getting back into work, then rehabilitation perhaps outweighs the requirement for you to serve the term (ts 20).

3 The circumstances to which the sentencing judge referred are neither unique nor mitigatory. 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. The otherwise appropriate penalty should not be reduced because there is a return to the status quo that existed prior to the breakdown of the relationship which precipitated the violence. It is also circular to rely on the return to the relationship status quo as the route to rehabilitation. Moreover, the emphasis on the domestic context marginalises the actual and threatened violence inflicted by the respondent on C.

4 The seriousness of both the offences and the circumstances of their commission are such as to require the imposition of a term of immediate imprisonment.

5 The respondent sought to rely on an affidavit attesting to matters that had occurred between his sentencing and the hearing of the appeal. I will

assume the affidavit is admissible under s 41(4)(a) of the Criminal Appeals Act 2004 (WA). Much of what is relied on in the affidavit is of little if any relevance in the appeal or in re-sentencing. However, I would accept that, as a result of regular counselling, the appellant has made some progress towards rehabilitation.

6 BUSS JA: The respondent was convicted in the District Court, on his fast-track pleas of guilty, on four counts in an indictment, being:

(a) two counts of deprivation of liberty, each relating to a different victim, contrary to s 333 of the Criminal Code (WA) (Code);

(b) one count of assault occasioning bodily harm, contrary to s 317(1) of the Code; and

(c) one count of threatening unlawfully to kill, contrary to s 338B of the Code.

7 All of these offences were committed on 7 April 2010 in a town in rural Western Australia.

8 The offences in the indictment constituted a breach of a 12-month community-based order imposed on the respondent in the Magistrates Court on 29 April 2009 for an offence of aggravated burglary. The respondent pleaded guilty to the breach and was re-sentenced for the aggravated burglary.

9 The respondent was remanded in custody on 21 April 2010, upon his bail being revoked in relation to the pending counts in the indictment. He was sentenced on 16 August 2010.

10 The sentencing judge, Goetze DCJ, imposed sentences as follows:

12 months' imprisonment conditionally suspended for 18 months concurrent

12 months' imprisonment conditionally suspended for 18 months concurrent

24 months' imprisonment conditionally suspended for 18 months concurrent

11 The total effective sentence was therefore 2 years' imprisonment, conditionally suspended for 18 months, and a fine of $2,000, with payment subject to pt 4 of the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA).

12 The State has appealed against the sentencing decision.

13 The respondent was born on 20 December 1985. He was aged 24 years when the offending occurred.

14 The first victim, K, was 22 at the time of the offending. She and the respondent had been living in a family and domestic relationship for about four years. The relationship had produced a 2-year-old daughter. K and the respondent had separated before the incidents in question.

15 The second victim, C, was 20 at the time of the offending.

16 K and C had been friends for at least two years when the incidents happened. According to K and C, they had commenced an intimate relationship after K separated from the respondent. The respondent believed that this intimacy had begun before he and K separated. When this intimate relationship commenced is of no relevance to the sentencing process, except that the respondent's belief may explain (but does not, of course, mitigate) at least some of his criminal behaviour.

17 On 7 April 2010, about four weeks after K and the respondent had separated, the respondent asked K and C to meet him at his home for the purpose of discussing the relationship between K and C. They went to his home. After some conversation, C left the premises. K remained with the respondent.

18 K and the respondent then drove K's motor vehicle in, and in the vicinity of, the town where they lived, looking for C. They located and spoke with her. K and the respondent then departed in K's vehicle. An argument developed between them. K stopped the vehicle near a park. She got out. The argument escalated. The respondent took K's mobile telephone and attempted to contact her mother. K struck the respondent twice to the face. He retaliated by pushing her to the ground on at least two occasions. He then forced her back into the vehicle. While he was attempting to shut the door, he caught her foot between the door and the body of the vehicle, causing a minor injury to her foot. These facts were the subject of a common assault charge against the respondent in the Magistrates Court.

19 The respondent refused to permit K to leave the motor vehicle. He detained her while he drove to his home. After entering the respondent's home, K attempted to escape to a neighbour's home, but the respondent forced her back. He put his hand over her mouth and carried her back into his home. He placed her on the lounge. The respondent then armed himself with a spear gun and loaded it with a barbed spear. These facts constituted count 1 (deprivation of liberty).

20 C returned to the respondent's home. When she got out of her motor vehicle, she was confronted by the respondent who was armed with the loaded spear gun. He pointed the spear gun at her and forced her to enter his home. When they arrived in the kitchen, the respondent demanded that all mobile telephones be placed on the table. C said she did not have one. C then said she was going to leave, but the respondent forcefully placed the spear gun on the table and pushed his left shoulder into C's body and stopped her. The respondent said to K and C that 'no one is leaving unless I say so'. He also told them that he was 'dying tonight' and would be taking someone with him. He looked directly at C as he spoke. These facts constituted count 2 (deprivation of liberty).

21 The respondent demanded that C give him the keys to her motor vehicle. She refused. C said she was going to leave, and attempted to walk past the respondent. The respondent punched C hard on the left cheek with sufficient force to knock her down. He picked her up by the throat and lifted her from the ground. He then placed her on the ground, facing him. C again refused to hand over the keys to her vehicle. The respondent hit her once more in the same area of her face. This caused her skin to split, and swelling appeared immediately.

22 After the episode of offending, C was examined by a medical practitioner, Dr Griffies. The medical notes indicate that Dr Griffies found:

(c) tenderness to her left cheek (a later CT scan revealed a non-displaced fracture to that side of her face);

(d) a large dark bruise to her right upper arm; and

23 The facts I have recounted constituted count 3 (assault occasioning bodily harm).

24 After the respondent assaulted her, C threw the keys to her vehicle onto the table. The respondent then forced C onto a kitchen stool, picked up the loaded spear gun and pointed it at her chest. He then made a number of threats to C, including:

(a) he could shoot her in the chest now, then call the police, or he could call the police first, then shoot her in the chest; and

(b) 'You killed me, that's why I have to kill you'.

These facts constituted count 4 (threatening unlawfully to kill).

25 It is apparent from C's witness statement that at the material time she held a genuine belief that her life was in imminent danger.

26 At some stage during the evening, the respondent discharged the spear gun. The spear penetrated a door in his home.

27 Later, in the course of the evening, the respondent wrote a note to the effect that he took full responsibility for any crime he committed. The note, which is dated 7 April 2010, is endorsed with the time '1.50 am' and bears the respondent's signature, reads:

I have written this knowing my life is over but I have been dead a long time I am so sorrey [sic]. I have nothing left to live for and I have had enought [sic] Im sorrey [sic] to my fameliy [sic] both of them I know I will not have it again. I tried to kick my evil side but it still came out any crimes that I comite [sic] from this time fooward [sic] I take full responsebiliy [sic] for.

28 Eventually, the respondent made some comments about his daughter, and broke down. He then telephoned the police. He told them there had been a domestic dispute and he wanted them to come and arrest him. The respondent then told K and C that they had to drive him to the police station. Eventually, they drove him to the police station, but police were not in attendance as they had gone to the respondent's home, arriving there at 2.50 am. The respondent voluntarily attended the police station again later in the morning. He was arrested at 6.15 am.

29 After sleeping, the respondent was interviewed by police at 10.30 am. He did not make any specific admissions in relation to the offences, but said he would not contest any allegations against him and would 'take full responsibility for last night'. At the respondent's request, he was interviewed again by police later that day at 2.58 pm. On this occasion, he admitted pushing K, after she struck him when he tried to telephone her mother, but he made no other admissions in relation to the counts in the indictment.

30 The author of a pre-sentence report, which was before the sentencing judge, records that the respondent did not disagree with the prosecution's statement of facts. The author also records that the respondent presented as genuinely remorseful for the trauma he had caused to his partner, K. No mention is made of any remorse in relation to C.

31 The report refers to the respondent's prior criminal record. The prior offences comprise:

(a) stealing and gaining a benefit by fraud, committed in August 2006, for which he was fined, in total, $300;

(b) stealing, committed in June 2006, for which no penalty was imposed; and

(c) aggravated burglary and stealing or receiving, committed in June 2006, for which the 12-month community-based order, to which I have referred and which involved 80 hours community work and supervision, was imposed.

32 The respondent completed the community work and reported, as required.

33 The counts in the indictment, the subject of this appeal, were committed about three weeks before the expiration of the community-based order.

34 When the respondent was charged with the offences with which this appeal is concerned he was released on protective bail. The conditions of bail required him to reside with his parents. However, on the night of 17/18 April 2010, he returned to his own home. He was therefore in breach of the bail conditions. On 21 April 2010, his bail was revoked and he was remanded in custody.

35 The report notes that since the commission of the offences K and the respondent have reconciled. C no longer resides in the town. K and the respondent are intent on 'recommencing their life as a family, including their engagement status'. K confirmed this information to the author of the report.

36 The respondent was educated to Year 10. He is a qualified welder and an experienced shearer who also has experience as a roof tiler. Since leaving school he has had no difficulty in obtaining worthwhile employment.

37 Alcohol and cannabis played a role in the respondent's commission of the offences in question. However, the respondent denied regular use of cannabis. He admitted alcohol consumption of about a carton of beer a week. K confirmed that his illicit drug use was 'minimal', but said he sometimes consumed alcohol to excess and it was for this reason that she separated from him in early 2010.

38 The report contains a summary, relevantly, as follows:

[The respondent] is a 24 year old male in a relatively stable, revived relationship. He is facing serious charges against his partner and her friend, but believes the relationship is reconciled and long-term. The prison database confirms that [the respondent] receives regular visits from his partner and family members. The friend has relocated and it is not expected she will return to the small town therefore avoiding any further involvement with the couple in the future.

He has a good earning capacity and a supportive extended family. As at 16 August 2010, he will have spent 120 days in custody, commencing remand on 21 April 2010. It certainly appears this remand in custody has had a salutary affect [sic].

39 On 8 July 2010, Dr JA Lister, a psychiatrist, assessed the respondent at Albany Prison. His report dated 1 August 2010 was before the sentencing judge.

40 The respondent told Dr Lister that his relationship with K was 'good' until C 'came on the scene'. He became suspicious of the friendship when he found K and C in 'compromising situations'. This coincided with a deterioration in his relationship with K. He felt frustrated, paranoid, angry and humiliated.

However the relationship with his de-facto continued to deteriorate and in a confrontation with [K] she admitted to the homosexual relationship that had been going on for about a year. She left the family home taking the child with her and went to live with her parents.

After [K] left his mental state continued to deteriorate, he felt he could not cope; suffered from anxiety, low mood, insomnia, poor appetite, dry retching and rapid loss of weight. He consulted his General Practitioner who prescribed an anti-depressive medication ('Avanza'). This was not effective and he felt increasingly depressed and socially isolated. He was in this abnormal mental state when the offences occurred.

42 Dr Lister referred to an event which occurred about two years before the current offending. The respondent participated in a fight with another man. The other man died from his injuries. Dr Lister considered this event was important as it had a significant effect on the respondent's mind and behaviour. Dr Lister explained:

[The respondent] had been in a shearing team for about six months. One night most of the team were out together drinking in a local pub. One of the team, a large Tasmanian called Shaun, would become aggressive when drinking and liked to pick a fight. On returning to the shearers quarters he started picking on a smaller, sixteen year old roustabout. [The respondent] intervened and asked Shaun to leave the boy alone; instead Shaun attacked him. He was forced up against a wall and a punch was aimed at him. Being trained in boxing, he was able to quickly hit Shaun first, striking him three times in the face, knocking him unconscious, fracturing his jaw and eye socket and breaking his nose. The combination of these injuries proved to be lethal. [The respondent] knew some first aid, turned Shaun into the coma position, left him snoring and went to seek help. Meanwhile Shaun stopped snoring as his lungs had filled with blood and he died.

On returning [the respondent] tried cardio pulmonary resuscitation to no avail. No charges were laid presumably due to provocation and or self defence. He still has bad dreams about the death but not sufficient symptoms to justify a diagnosis of post-traumatic stress disorder. The small town ... were divided as to [the respondent's] culpability and this produced a lot of social difficulties and social isolation for [the respondent].

43 Dr Lister noted that the respondent had continued with the anti-depressant medication prescribed by his general practitioner and that, after about a month, he had 'felt much improved in mood'. The medication was continuing.

44 The respondent scored 12 for anxiety and 11 for depression in a psychometric test administered by Dr Lister. Scores above 10 for depression and 10 for anxiety are considered significant. Dr Lister said it was probable that some of the respondent's depressive and anxiety symptoms were related to his 'current legal difficulties'.

45 Dr Lister estimated that the respondent is of slightly below average intelligence.

46 The opinion of Dr Lister in relation to the respondent was as follows:

Diagnosis (Using the International Diagnosis of Diseases 10th edition)

F41.2 Mixed Anxiety and Depressive Disorder. (in partial remission)

Narrative

[The respondent] was brought up in a family where emotional difficulties were not expressed and dealt with by a rigid set of rules. This limited way of coping with emotional problems enabled him to overcome aggression directed at him when bullied at school by his use of trained and approved violence, but was inappropriate when in emotional conflict with his de-facto wife.

The arrival of a third party into the family hierarchy caused humiliation and anger. His mental state deteriorated, he became anxious and depressed and fuelled by rejection and alcohol he regressed to violence.

He now seems open to learn more appropriate ways of solving interpersonal conflict and is remorseful about his violent behaviour. He has a chance to re establish relationships with his de-facto wife and daughter. He also seems interested in being helped to control his anger and to improve relationships with his de-facto.

Recommendations

Whether sentenced to prison or given some sort of Community Order, he should continue current medication for at least two months and be reviewed by a psychiatrist, before ceasing medication.

He should access counselling directed to anger management and improving interpersonal skills.

47 A victim impact statement dated 23 July 2010 from C was before the sentencing judge.

48 Unsurprisingly, the offences committed by the respondent against C had a severe impact on her. She described the offences as having changed her life.

49 After she was assaulted, there was 'massive bruising' on her hip and, also, bruising under her right arm, which remained for a long time. Her cheek continues to ache.

50 The non-physical impact on C was more profound and ongoing. She felt terrorised and afraid she would die.

51 C went on stress leave for two months after the offences. She described herself as having had a 'breakdown'. She noticed that her mood was changeable. This, in turn, impacted upon those close to her, in particular, her mother and her sister. She suffers from insomnia and is socially withdrawn. For reasons attributable to the offences, she was unable to continue with her previous employment and she relocated from the town.

52 After the offending, her relationship with K disintegrated.

53 C has been consulting a counsellor and hopes that this will assist in rehabilitating her life.

54 The sentencing judge recited the facts and circumstances of the offending, and details of the respondent's personal circumstances.

55 His Honour noted the respondent's prior criminal record, the pre-sentence report and the psychiatric report.

56 The sentencing judge made mention of C's victim impact statement, as follows:

I've also had a victim impact statement from Ms [C] which describes how your offending has affected her work. She was on stress leave at the time; her personality changed and her relationship with [K] has now terminated, but at the time of writing the report ... she was for some considerable time suspicious, unable to sleep and struggling on a daily basis to get over this situation and she moved away from [the town] (ts 17).

57 His Honour said that the respondent had pleaded guilty on the fast-track system, had accepted responsibility 'from the very beginning', had cooperated with the police, and had shown genuine remorse (ts 17 - 18). He was entitled to credit for these matters in the sentencing process. However, his Honour said that there was 'a need in this case for punishment and for personal and general deterrence to stop others like you from committing offences of this kind' (ts 17).

58 The sentencing judge said in relation to the respondent's criminal conduct as embodied in the offences:

This is not just a situation of domestic violence, although that is at the heart of it. If you truly cared for Ms [K] you would not have subjected her to the abuse which you did on this particular night. It involved a third party. There was a spear gun pointed at her. Although I'm not able to be told precisely what condition that gun was in, in terms of its ability to be fired when you made the threat to unlawfully kill Ms [C], certainly before the evening was over it was fired and went through or into a door.

That must have been a frightening experience for Ms [C] because emotions were running extremely high. You had been drinking, you had been taking cannabis or drugs and the situation was getting out of hand when you made that threat, so that is something that she will no doubt, as her victim impact statement indicates, suffer for some considerable time.

Conduct like that cannot be tolerated, notwithstanding the underlying psychiatric or psychological condition in which you found yourself (ts 18).

59 His Honour told the respondent that if he was 'going to point spear guns at people' then 'the seriousness of the offence and the need for community protection does require a term of imprisonment' (ts 19).

60 After deciding that a 'term of imprisonment' was 'certainly required' for the respondent's offending, the sentencing judge gave consideration to whether the term should be suspended. His Honour said:

That requires me to revisit all relevant circumstances - to have a second look at everything, as it were. That requires me to look at all the factors I've mentioned, aggravating and mitigating, and the objective features of the offending.

I've had a look at your antecedents, the fact of your early plea and that you had also called the police on that particular night yourself, and that you are remorseful. I've noted what your referees have had to say about you but this was a serious charge.

...

I can also take into account the fact that you have been in custody now for some four months approximately this week, certainly later in the week. The decision to suspend or not is difficult but you are I think a person in whom I can grant suspension, and primarily because of your acceptance of responsibility in these unique circumstances in which there was a matrimonial breakdown, if you like, that you have reconciled, that your partner wants you back, that there is a child of your union and that you are a person who can get employment readily within the community and thereby if the system can rehabilitate you to assume full responsibility for your family through looking after them financially and by getting back into work, then rehabilitation perhaps outweighs the requirement for you to serve the term. So by the narrowest of margins I am prepared to allow you to have the term suspended (ts 19 - 20). (emphasis added)

61 His Honour then imposed the sentences which are challenged in this appeal.

63 Ground 1 alleges that the sentence for count 3 (assault occasioning bodily harm: a fine of $1,000) was manifestly inadequate.

64 Ground 2 alleges that the sentencing judge's decision to order that the conditionally suspended terms of imprisonment for counts 1, 2 and 4 be served wholly concurrently infringed the totality principle, and resulted in a total effective sentence that was disproportionate to the overall criminality involved in the offending.

65 Ground 3 alleges that his Honour erred in the course of deciding whether to suspend the terms of imprisonment by failing to have regard again to the seriousness of the offending conduct and to the impact of the conduct on K and C.

66 Ground 4 alleges that, by ordering that the terms of imprisonment imposed for each of counts 1, 2 and 4 be conditionally suspended, his Honour imposed a sentence that was, in each case, manifestly inadequate.

67 On 29 September 2010, McLure P granted leave to appeal on grounds 1 and 4 and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.

68 It is convenient to consider the grounds of appeal in this order: ground 1, then ground 3, then ground 4 and, finally, ground 2.

69 A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

70 Section 317(1) of the Code provides, relevantly:

Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -

(a) if the offence is committed in circumstances of aggravation ... to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years.

71 In the present case, no circumstances of aggravation were alleged against the respondent. The maximum penalty was therefore imprisonment for 5 years.

72 By s 41(2)(b) of the Sentencing Act 1995 (WA), the sentencing judge was empowered to impose a term of imprisonment on the respondent and, in addition, fine him. There was no limit on the amount of the fine: s 41(5).

73 In Mourish v The State of Western Australia [2006] WASCA 257, McLure JA (Steytler P & Wheeler JA agreeing) summarised the sentencing dispositions in various cases relating to the offence of assault occasioning bodily harm contrary to s 317(1). Where the case was decided before the commencement of the transitional provisions, her Honour converted the sentences to post-transitional sentences and recorded the pre-transitional sentence in brackets. The relevant cases, as set out by her Honour, were these:

Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.

Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.

Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.

Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.

Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.

The State of Western Australia v Anderson [2004] WASCA 157 - the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.

Robinson v Smith [2005] WASC 99 - the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending [12].

The appeals in Robinson, Poletti, Mical, Harvey and Johnson were from decisions of magistrates who were unable to impose a term of imprisonment exceeding 2 years. Also, those cases (apart from Robinson) and the cases of Mitchell and Anderson involved pleas of guilty.

74 In The State of Western Australia v Camilleri [2008] WASCA 217, the respondent pleaded guilty to an indictment containing two counts of assault occasioning bodily harm contrary to s 317(1) and one count of doing grievous bodily harm contrary to s 297(1) of the Code. The State appealed against the sentences imposed on the respondent. It was asserted, on behalf of the State, that the 'range' of sentences for assault occasioning bodily harm contrary to s 317(1), after the coming into operation of the transitional provisions, had generally been between 6 and 18 months' imprisonment. Counsel for the State cited Mourish [12] in support of that submission. However, as Wheeler JA (McLure & Buss JJA agreeing) noted, McLure JA did not, in Mourish, assert that that was the 'range' of sentences. Rather, her Honour merely examined several cases dealing with offences against s 317(1), for the purpose of determining whether the particular sentence imposed on the offender in Mourish was manifestly excessive.

75 It is difficult to discern any 'tariff' or usual sentencing range for assault occasioning bodily harm. See Kilner v The Queen [1999] WASCA 189 [21] (Ipp J). Ipp J reviewed the sentencing outcomes in several cases where the offender had been convicted of assault occasioning bodily harm. It is unnecessary to reproduce this review.

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 [16].

See also Holden v The State of Western Australia [2009] WASCA 50, where Wheeler JA reiterated that it is difficult to discern a 'tariff' for assault occasioning bodily harm because of the great variation in circumstances in such cases. Her Honour added, however, that:

[I]n cases which have involved pleas of guilty, a post-transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].

77 In Wiltshire v Mafi [2010] WASCA 111, the offender committed a serious, unprovoked and sustained assault on the complainant. The offender pleaded guilty to assault occasioning bodily harm and was sentenced by a magistrate to 15 months' immediate imprisonment. He appealed. McKechnie J allowed the appeal and re-sentenced the offender to 12 months' imprisonment, suspended for 9 months. This court (Pullin & Buss JJA & Mazza J) allowed the State's appeal against the judgment of McKechnie J. It held that the magistrate had not made any sentencing error and the offender's appeal should have been dismissed.

78 The complainant in Wiltshire suffered a lacerated spleen and a lacerated kidney, which were managed by the insertion of a catheter and the administration of painkillers and antibiotics. He urinated blood for 20 days following the assault. He was unable to eat solids while hospitalised in case emergency surgery was required due to the injuries he sustained and he lost about 6 kg in body weight. After being discharged, he experienced difficulties eating and was bedridden for about two weeks. Emergency care was required on one day as a result of ongoing issues with kidney trauma for which he was hospitalised for 24 hours. The assault seriously disrupted his planned activities. He had to cancel planned paid employment during his university holidays. The assault affected him financially and emotionally. He faced an increased risk of diabetes, kidney failure and other medical issues later in life.

79 Pullin and Buss JJA and Mazza J said that an examination of the review of sentences carried out in Kilner [22] - [26], Mourish [12] and The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [166] - [173] suggested that a sentence of 12 months' suspended imprisonment is usually given for assaults less serious than the assault which occurred in Wiltshire.

80 In my opinion, the assault committed by the respondent against C in the present case was serious. In particular:

(a) The assault was unprovoked and committed against an unarmed victim who offered no resistance.

(b) The assault involved more than one blow and, in addition, lifting the victim from the floor by her throat.

(c) The respondent was armed with a loaded spear gun, and this was likely to have increased the victim's fear and diminished her ability to resist.

(d) The assault was committed in the context of the breakdown of the family and domestic relationship between the respondent and K, and the existence of a new relationship between K and C. In these circumstances, personal and general deterrence were relevant sentencing factors.

(e) The assault was not spontaneous, but part of a prolonged episode of intimidation towards C.

(f) C suffered physical injuries which required medical attention. Also, she was struck with sufficient force to cause serious bruising and a non-displaced fracture to the left side of her face.

81 The respondent's personal circumstances were, in general, favourable. He was relatively young, being aged 24 years at the time of offending. He pleaded guilty on the fast-track system and accepted responsibility for the offending. At the material time, the respondent appears to have been suffering from a mixed anxiety and depressive disorder. He had sought medical treatment from his general practitioner after his separation from K and before the offending, but the medication prescribed for him had not taken effect.

82 In my opinion, a fine of $1,000 was manifestly inadequate when that penalty is viewed from the perspective of the maximum available penalty, the general standards of sentencing applicable to the offence of assault occasioning bodily harm, and the seriousness of the assault upon C including its physical and emotional impact on her, after taking into account the respondent's personal circumstances.

84 Section 76(1) of the Sentencing Act provides:

A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

85 By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

86 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J made the following observations about s 76(1) and (2) in the context of the legislative scheme embodied in the Sentencing Act:

Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P [1992] FCA 626; (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J) [85].

87 In the present case, the sentencing judge said, in the course of considering whether to suspend the terms of imprisonment or not, that the issue of suspension required him to 'revisit all relevant circumstances - to have a second look at everything, as it were' (ts 19). His Honour added:

That requires me to look at all the factors I've mentioned, aggravating and mitigating, and the objective features of the offending (ts 19).

These observations indicate that the sentencing judge adopted the correct approach.

88 His Honour then mentioned a number of mitigating features including several favourable personal circumstances which, in his Honour's view, pointed towards the appropriateness of suspending the terms of imprisonment. His Honour did not specifically mention the facts and circumstances which characterised the offending conduct as serious, although he did say, in the context of references as to the respondent's character, that 'this was a serious charge' (ts 19).

89 I am not persuaded, on an examination of the sentencing judge's remarks as a whole, that his Honour failed to have regard again to the seriousness of the offending conduct, including its impact on K and C, in deciding whether to suspend the terms of imprisonment. His Honour said that the issue of suspension required him to revisit all relevant circumstances, all aggravating and mitigating factors, and the objective features of the offending (which necessarily includes its seriousness). It should not be inferred that his Honour made the error alleged in ground 3.

Any person who unlawfully detains another person is guilty of a crime and is liable to imprisonment for 10 years.

92 No 'tariff' exists for the offence of deprivation of liberty because of the great variation that attends the commission of this offence. The sentence to be imposed in a particular case depends on the individual facts and circumstances of the offence, having regard to the maximum available penalty and the personal circumstances of the offender.

93 This point was made by Owen JA (Wheeler & Miller JJA agreeing) in Henderson v The State of Western Australia [2007] WASCA 198:

It is not easy to make comparisons for the offence of unlawful detention because, like crimes such as manslaughter, it covers a broad spectrum of factual possibilities. Many of these cases are associated with sexual offences. I will not mention cases of that type because I think they raise quite different considerations. In Cook v The Queen [2001] WASCA 16, during the course of an armed robbery the offender detained the sole occupant of the premises and bound her wrists with tape to prevent her escaping while he collected money. A sentence of 2 years (16 months under the present sentencing regime) for the unlawful detention (part of an overall term of 6 years and 5 months) following a guilty plea was left undisturbed. In Iveson v The State of Western Australia [2005] WASCA 25 the offender, in breach of a Violence Restraining Order, went to the residence of a former partner and assaulted her. She tried to escape but the offender stopped her at the front door and closed the door. He then assaulted her again. He was charged with one count of unlawful detention, two of assault occasioning bodily harm and one breach of a restraining order. The sentence imposed for the unlawful detention was 2 years (as part of an aggregate sentence of 4 years and 10 months). The offender's application for leave to appeal against the sentence was rejected [61].

94 Similarily, in The State of Western Australia v Tik [2009] WASCA 122, Pullin JA (Wheeler & Miller JJA agreeing) said:

This type of offence is most commonly committed in conjunction with a robbery offence or a sexual assault offence. The cases of Krencej v The Queen [1999] WASCA 20; Cook v The Queen [2001] WASCA 16; Kometer v The State of Western Australia [2005] WASCA 131; Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469; Thorn v The State of Western Australia [2008] WASCA 36 and The State of Western Australia v Goodin [2008] WASC 116 reveal sentences (in post-transitional terms) ranging from 1 year 4 months to 3 years 4 months' imprisonment for deprivation of liberty charges. Two of the cases (Seroka and Cook) reveal sentences imposed after pleas of not guilty and in the other four cases there were pleas of guilty. However, the deprivation of liberty in each case was for one relatively short period of time and in circumstances markedly different from this case. There can be no tariff for this type of offence because the circumstances and length of detention can vary markedly [45].

95 I have examined numerous sentencing decisions involving the offence of deprivation of liberty. See, for example, Tik; The State of Western Australia v Goodin [2008] WASC 116; Thorn v The State of Western Australia [2008] WASCA 36; Henderson; Seroka v The State of Western Australia [2006] WASCA 284; K v The State of Western Australia [2005] WASCA 131; Snider v The State of Western Australia [2005] WASCA 61; Cook v The Queen [2001] WASCA 16; R v Richards [1999] WASCA 105; Krencej v The Queen [1999] WASCA 20; and Sinclair v The Queen (Unreported, WASCA, Library No 970088, 12 March 1997). None of them is truly comparable with the present case.

96 Section 338B(a) of the Code provides, relevantly, that any person who makes a threat unlawfully to kill a person is guilty of a crime and is liable to imprisonment for 7 years.

97 As Malcolm CJ (Ipp & White JJ agreeing) noted in R v Starr [1999] WASCA 119, the gravamen of the offence under s 338B(a) is the making of the threat. The provision does not require an intention actually to carry out the threat. If, however, such an intention is established, that is an aggravating factor which is of relevance to the sentence to be imposed.

98 A threat unlawfully to kill will be more serious if it is made in circumstances where the offender has a present ability to carry out the threat; for example, where the threat is made while the offender is armed with a knife or other weapon. See The State of Western Australia v Turaga [2006] WASCA 199 [19] (Wheeler JA).

99 A review of previous sentencing dispositions in relation to the offence of threatening unlawfully to kill reveals that (as with the offence of deprivation of liberty) there are significant variations in the facts and circumstances of each offending and offender. The sentence to be imposed in a particular case depends on the individual facts and circumstances of the offence, having regard to the maximum available penalty and the personal circumstances of the offender. The cases I have reviewed include The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137; Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319; Miller v The State of Western Australia [2009] WASCA 79; Turaga; Thompson v Murray [2004] WASCA 168; Etheridge v The Queen [2004] WASCA 152; The State of Western Australia v Anderson [2004] WASCA 157; and Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475.

100 The factors to be considered when deciding whether to suspend a term of imprisonment or not include:

(a) the perceived seriousness and intrinsic character of the offence;

(d) factors personal to the offender including mitigating circumstances;

(e) the need to demonstrate the community's condemnation of offences of the kind in question;

(f) the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and

(g) any reasons militating in favour of an exercise of mercy.

This list of factors is not, of course, exhaustive. See R v Liddington (1997) 18 WAR 394, 406 (Steytler J).

101 The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh these considerations. See Dinsdale [86].

102 In the present case, the offences of deprivation of liberty (counts 1 and 2) were, objectively, very serious. The facts which reveal this seriousness include:

(a) the complainants were involved in an emotional relationship with each other, and would have been concerned for each other's welfare;

(b) the physical strength of each complainant was materially less than that of the respondent, who had been trained in boxing and self-defence;

(c) the respondent used a loaded weapon, namely the spear gun, to force C to enter his home and, also, to prevent resistance by each complainant to her continuing detention;

(d) the respondent used actual violence against each complainant to maintain the detention; and

(e) although the precise length of the overall detention is unclear from the material before this court, it is apparent that each complainant was detained for a prolonged period.

103 The sentencing judge referred, in his sentencing remarks, to the 'unique circumstances' of the case. The circumstances which he apparently thought were 'unique' appear to be those he then enumerated, namely:

there was a matrimonial breakdown, ... you have reconciled, ... your partner wants you back, ... there is a child of your union and ... you are a person who can get employment readily within the community (ts 20).

104 On any view, these circumstances cannot be described as 'unique'. They are not, ordinarily, mitigatory factors. However, the reconciliation with K, after the respondent's mental state had improved as a result of his ongoing therapy with anti-depressant medication, may, perhaps, indicate that the respondent has made some progress towards his rehabilitation. Also, there was no evidence or suggestion that there had been any history of domestic violence by the respondent towards K before he became suspicious about her association with C.

105 In the present case, the offence of threatening unlawfully to kill (count 4) was also, objectively, very serious. This is demonstrated by the following facts:

(a) The respondent told C that the consequences he might incur as a result of killing her would not deter him from that course. He said on several occasions that he accepted police would be involved and that he would die, but he intended to kill C before that occurred.

(b) The note written by the respondent during the evening in question (see [27] above) indicates that when he wrote the note he was contemplating suicide. This underscores the apparent sincerity of the respondent's statements to C that he would die and that he would also kill her.

(c) The respondent was armed with a loaded spear gun and therefore had a present ability to carry out his threat to kill.

(d) C believed, on reasonable grounds, that her life was in imminent danger and this caused her significant emotional trauma. When the respondent shot the spear into the door, C shut her eyes believing he was shooting it at her. The respondent's conduct has resulted in C suffering psychological damage, as described in her victim impact statement.

(e) The threats to kill C were made in the context of the breakdown of the family and domestic relationship between the respondent and K, and the existence of a new relationship between K and C.

106 The usual sentencing disposition where a person is convicted of the offence of deprivation of liberty or the offence of threatening unlawfully to kill, where the offender is armed with a weapon and the offending is otherwise objectively serious, is a term of imprisonment to be served immediately.

107 I am satisfied that the personal circumstances of the respondent (including his surrender to police, the fast-track pleas of guilty, his acceptance of responsibility for the offending and his mixed anxiety and depressive disorder) were not sufficiently exceptional to exclude him from the usual sentencing disposition of a term of immediate imprisonment for each of counts 1, 2 and 4. The seriousness of the offending and the need for personal and general deterrence outweighed considerations of rehabilitation and mercy. The fact that the respondent had spent almost four months in custody in relation to the offences in question, as a result of his bail having been revoked following his breach of the bail conditions, was able to be taken into account in the sentencing process by back-dating the sentence. See s 87 of the Sentencing Act.

109 The State relies on the first limb of the totality principle.

110 This requires, relevantly, that the total effective sentence imposed on an offender who is being sentenced for multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).

111 The application of the totality principle depends on the particular facts and circumstances of each case.

112 I am not persuaded that the trial judge made an error in ordering that the terms of imprisonment for counts 1, 2 and 4 be served concurrently. His Honour was entitled to conclude that the total criminality of the offending embodied within counts 1, 2 and 4 would be properly marked, and all relevant sentencing principles would be satisfied, by a total effective term of imprisonment of 2 years. In particular, his Honour's decision to make the terms wholly concurrent was an appropriate means of reflecting the favourable personal circumstances of the respondent. I refer, in particular, to the respondent's surrender to police, the fast-track pleas of guilty, his acceptance of responsibility for the offending, his mixed anxiety and depressive disorder and the other positive factors recounted in the pre-sentence report and the psychiatric report.

The result of the appeal and the re-sentencing of the respondent

114 I would grant leave to appeal on grounds 2 and 3. The appeal should be allowed and his Honour's sentencing decision in relation to counts 1, 2, 3 and 4 should be set aside. This court has the materials necessary to re-sentence the respondent.

115 The materials before the court include an affidavit of the respondent sworn 15 November 2010. The State did not oppose the court receiving the affidavit. It was admissible under s 41(4)(a) of the Criminal Appeals Act 2004 (WA). The affidavit sets out facts and circumstances which have occurred in relation to him since his original sentencing. In particular:

(b) he has received regular counselling from a representative of Community Justice Services and has done everything directed of him;

(d) he lives with K and their child on K's parents' farm;

(e) he has found employment with a shearing contractor;

(f) he has completed community work that was ordered in the Magistrates Court;

(g) his home has been repossessed and sold by the bank as a result of his inability to meet the mortgage payments while he was in custody;

(h) he contributes towards the living expenses of himself, K and their child; and

(i) K works part-time and receives Centrelink payments.

The State did not contest the evidence in the respondent's affidavit and did not require him to be produced for cross-examination.

116 The respondent's affidavit shows that he has made progress towards rehabilitation since the original sentencing in that he has received regular counselling, has done everything directed of him by the Community Justice Services and has completed community work that was ordered in the Magistrates Court. This must be taken into account, together with the relevant facts and circumstances that were before his Honour, in re-sentencing.

117 I would impose terms of immediate imprisonment, as follows:

(c) Count 3: assault occasioning bodily harm: 6 months; and

(d) Count 4: threatening unlawfully to kill: 18 months.

118 The sentences should be served concurrently. The total effective sentence is therefore 18 months' immediate imprisonment. The sentences should be taken to have taken effect on the date which is 3 months and 25 days before the date on which this court re-sentences the respondent. See s 41(1)(a) of the Criminal Appeals Act. The back-dating will give him credit for the time he has already spent in custody. A parole eligibility order should be made.

119 I have reduced the length of the term of imprisonment for count 4 from 24 months to 18 months on account of the events which have occurred since the original sentencing; notably, to reflect the supervision and programme requirements which have bound the respondent and with which he has complied and, also, to reflect his progress towards rehabilitation.

120 It is not open to suspend the new sentence for count 3. See s 76(3)(b) of the Sentencing Act.

121 The respondent will be eligible for release on parole upon having served 9 months calculated from the date of commencement of the new sentences.