THE STATE OF WESTERN AUSTRALIA -v- SALEH [2020] WASCA 205 (7 December 2020)

1. There was no dispute as to the facts. In giving an account of the facts it will be necessary to refer to the other three men alleged to have been involved. As those men are yet to come to trial they will be referred to by non‑identifying initials.
2. The offending took place outside the Galaxy Lounge, a karaoke bar in Northbridge, at around 2.45 am on Sunday 9 July 2017. The victim with respect to count 1, Blake Slatter, was at the venue together with his younger brother, Rhys Slatter, and a friend, Joshua Pointing. Mr Pointing was the victim in respect of count 2. Both respondents were also at the Galaxy Lounge as part of a separate group. There had been no interaction or altercation between the groups prior to the offending.
3. The respondents' group was outside the venue when one member of that group, (A), began to argue with another unknown member of the same group. Blake Slatter was standing nearby with Rhys Slatter. At some point A's attention was diverted to Blake Slatter to whom he said 'What the fuck are you looking at?', to which Blake Slatter replied 'Nothing mate'. A then approached Blake and Rhys Slatter in a fighting stance with other members of the respondents' group following.
4. From this point the incident was captured on CCTV. The CCTV footage was provided to the sentencing judge as part of the alleged facts. It was also made available on the appeal and has been viewed by us. It is unusually clear and records almost all of the incident, including the relevant actions of the two respondents.
5. Initially Mr Assaad is seen being held back by another man in his group, (C). Mr Saleh is standing alone at the front of the Galaxy Lounge a short distance away. Blake and Rhys Slatter back away across the entrance to a carpark. As they do so members of the respondents' group advance on them. A fighting stance is adopted by A, who then moves forward and kicks Rhys Slatter. This prompts Blake Slatter to attempt to punch A in defence of his brother. The punch misses and Blake Slatter then grapples with A. Mr Assaad and another man in the respondents' group (B) then become involved in this grappling with Blake Slatter.
6. Both groups of men move into the carpark area, the respondents' group being the aggressors with the other group retreating. Blake and Rhys Slatter are backed into the carpark and up against a railing or gate where they are surrounded by A, B and Mr Assaad, each of whom takes a fighting stance. At this point Mr Pointing is standing near the carpark entrance.
7. Mr Saleh then moves quickly from the place where he had been standing in front of the Galaxy Lounge into the carpark and towards the contesting groups. Whilst moving he throws a single powerful punch with a raised arm at Blake Slatter's head causing Slatter to fall backwards and into the railing.
8. A melee then ensues in which other members of the respondents' group strike Blake and Rhys Slatter. In particular Mr Assaad strikes Blake Slatter a number of times. Following the initial punch by Mr Saleh, Mr Assaad strikes Blake Slatter with his left fist. They then begin grappling with each other and Mr Assaad strikes Blake Slatter's head with his right fist. Blake Slatter then stumbles and turns away towards a car at the other side of the carpark where he continues to be struck by A and B. Mr Assaad then follows Blake Slatter and throws a series of right‑hand punches at him. It is not possible to say whether every punch in this latter series necessarily connected, though it is apparent from the movement of the victim's head that at least some of them did.
9. At this time Joshua Pointing moved to assist Blake Slatter. Mr Pointing was then backed up against a wall by A and C. Mr Assaad, A and C then grappled with Pointing striking him a number of times and leaving him slumped against a wall. Pointing ends up on the ground where he is struck a number of times, although this final part of the attack cannot be seen on CCTV so it cannot be ascertained precisely who struck which of these blows.
10. During the attack on Mr Pointing, Mr Saleh is standing nearby. The prosecution case was that Mr Saleh was criminally liable for the assault on Mr Pointing, but only by virtue of s 8 of the Criminal Code. That is, that the assault on Mr Pointing was a probable consequence of Mr Saleh participating in an unlawful purpose with the other men. It was not alleged that Saleh had struck any blows to Pointing.
11. As a result of the assaults the subject of count 1 Blake Slatter sustained a fractured cheekbone, a broken nose and a hairline fracture to the jaw, together with extensive bleeding and bruising. He underwent surgery in which plates were inserted to help heal his cheekbone and his nose was realigned. It was not alleged that the injuries were such as to endanger life; rather they were of such a nature as to cause or be likely to cause permanent injury to health. After the assault and prior to surgery Blake Slatter had difficulty breathing through his right nostril and had numbness in his cheek. He continues to suffer from numbness in the right‑side of his face which has an ongoing effect on his eating habits. The sentencing judge accepted that these were lasting consequences.
12. Joshua Pointing suffered a laceration to the back of his head which required four stitches, a stiff jaw and tenderness of the torso.

1. Mr Saleh was 22 years old at the time of the offending and 25 years old when he came to be sentenced. He has a supportive family and at the time of sentencing was living with his sister and two nephews. He is a qualified electrician and was employed in that capacity at the time of sentencing. He is in good physical health but experienced depression and anxiety after the offending, for which he was prescribed antidepressants.
2. Mr Saleh has engaged in binge drinking of alcohol. He had taken some steps to overcome that problem after he was released on bail. He reported stopping drinking altogether for 12 months and to subsequently limiting alcohol to the occasional drink on social occasions. He reported that he had done this because he did not like the person he became when he was drinking.
3. Mr Saleh has only one minor prior conviction, in November 2015. The sentencing judge said that he was essentially a person of good character prior to the commission of these offences. Personal references attested to his work ethic, willingness to help others in the community and contributions to a sporting club.
4. A pre‑sentence report stated that Mr Saleh had accepted the offending behaviour, expressed empathy for the victims and acknowledged the impact that the offending would have had on the victims. The report writer stated that Mr Saleh appeared to have given thought to the reasons for his behaviour and taken steps to overcome the issues that were the underlying causes of that behaviour, in particular alcohol consumption. Mr Saleh reported reducing that consumption and distancing himself from others who were involved in the incident.
5. The sentencing judge found that Mr Saleh was remorseful, had taken steps towards his rehabilitation, had good family support, secure employment and a place to live and that there was minimal risk of reoffending.
6. Mr Saleh had spent approximately two months in custody prior to his release on bail (from 12 December 2017 to 15 February 2018). The sentencing judge noted that he had spent 2½ years on bail, complying with strict conditions, including an overnight curfew.
7. Mr Saleh entered a plea of guilty to the charges on 10 February 2020. In May 2019 the matter had been listed for a trial to commence on 16 March 2020. The sentencing judge described the plea as being made at a 'fairly late stage although not at the latest possible stage.' She determined that the appropriate discount under s 9AA of the Sentencing Act 1995 (WA) was 12%. That assessment is not disputed.

Personal circumstances - Ebraheem Mohommed Assaad

1. Mr Assaad was 22 years old at the time of the offending and 25 years old when he came to be sentenced. His parents separated when he was 14 years old due to domestic violence on the part of his father. His father was a heavy user of cannabis and was physically and emotionally abusive towards his wife and children. After the separation his father had no further involvement in his life. His mother met a new partner in 2012 when Mr Assaad was 18. Mr Assaad has a close relationship with his mother, stepfather and half siblings.
2. After leaving school Mr Assaad undertook an electrical apprenticeship which he did not finish. He then worked on a sporadic basis for an uncle who has a bricklaying business. He was not working at the time of sentencing, although there was the prospect of work in the future.
3. A pre‑sentence report prepared in respect of another matter in 2013 identified a number of unresolved issues including trauma, abandonment, victimisation, poor coping methods, poor problem solving skills and a tendency towards violence. It did not appear that any treatment for those issues was received.
4. Mr Assaad has a history of alcohol abuse. He started drinking in his teen years and by the age of 20 it was a problem. He would drink excessively and his behaviour became out of control. When he was 19 he started to use cannabis but stopped after two years because of the negative impact it was having.
5. Mr Assaad has a criminal history, though much of it is as a juvenile. Prior to these offences he had not committed any offences of violence as an adult, although there were juvenile convictions in 2013 for grievous bodily harm with intent and two counts of assault occasioning bodily harm for which he received a sentence of imprisonment. Those offences occurred in July 2012 when he was 17 years old. He also had a conviction for assault occasioning bodily harm on 5 December 2019 which occurred whilst he was remanded in custody on other matters after being charged with the present offences. That offence is of limited relevance having regard to the fact that it occurred after the present offences.
6. As at the date of the present offences Mr Assaad was on bail for an unrelated matter. On 2 February 2017 he committed an offence of obstructing a public officer, which was dealt with on 31 July 2017. It was accepted that he was on bail for that matter as at 9 July 2017, when the present offences were committed.
7. Two personal references from members of Mr Assaad's family spoke of his remorse, growing maturity since the time of the offences and willingness to take steps to address the causes of the offending.
8. A pre‑sentence report in respect of Mr Assaad noted that he had accepted full responsibility for his behaviour, acknowledged the seriousness of the injuries that were caused and expressed empathy for the victims. He had taken steps to reduce his drinking and had stopped drinking altogether nearly 12 months prior to the sentencing. It was also reported that he was avoiding attending high risk areas such as Northbridge and had distanced himself from negative peers. However, similar claims about changing his lifestyle had been made in 2013.
9. On the basis of Mr Assaad's history of violent offending he was considered to present a risk of offending and of harm to the community. On the other hand, the sentencing judge noted that he had a number of protective factors including significant family support and a constructive relationship with his partner. The sentencing judge concluded that in the absence of intervention in respect of underlying issues and in light of his history of offences, Mr Assaad was at some risk of reoffending in a similar manner.
10. Mr Assaad had spent 9 months in custody prior to his release on bail on 7 October 2019. From that time he was on what the sentencing judge described as 'stringent bail conditions' which included a curfew and reporting conditions. The conditions were described as being more onerous than those imposed on Mr Saleh in that there was an earlier curfew and more frequent reporting, at least initially. The sentencing judge treated compliance with these conditions for an 11 month period as a mitigating factor.
11. Mr Assaad pleaded guilty on 12 March 2020. That plea had been indicated to the prosecution three weeks prior to the trial, which was due to commence on 16 March 2020. The sentencing judge described this plea as 'relatively late'. It was accepted as having the capacity to materially reduce the length and complexity of the trial. The sentencing judge determined that the appropriate discount under s 9AA of the Sentencing Act was 10%. That assessment of the value of the pleas is not disputed.

1. It is not necessary to analyse the sentencing judge's remarks in great detail. No express error is alleged.
2. Her Honour concluded that the circumstances of the offences were so serious that it was not appropriate to impose anything other than sentences of imprisonment. Her Honour found that the culpability of Mr Saleh and Mr Assaad was 'roughly equal' for the offending in respect of count 1. However, her Honour found that Mr Assaad bore greater culpability than Mr Saleh for the offending in respect of count 2. Mr Assaad's greater culpability in respect of count 2 and Mr Saleh's greater mitigating factors warranted the imposition on Mr Saleh of a lesser individual sentence for count 2 and a lesser total effective sentence.
3. Her Honour concluded that the appropriate sentences in respect of Mr Saleh were 21 months' imprisonment on count 1 and 6 months' imprisonment on count 2. In respect of Mr Assaad, she concluded that the appropriate sentences were 2 years' imprisonment on count 1 and 9 months' imprisonment on count 2. In both cases she considered that the sentences should be served concurrently, though this became irrelevant in light of the decision that she made regarding whether the sentences should be suspended.
4. In turning to the question of whether the sentences should be suspended, her Honour noted that both respondents had pleaded guilty, were of relatively young age and had spent time in custody. In respect of Mr Saleh, she noted that he had good character and good antecedents, had spent 65 days in custody, which was his first time in prison and had spent 2½ years complying with strict bail conditions, including an overnight curfew. She also acknowledged that he had taken steps towards his rehabilitation and was generally remorseful. On the other hand, she noted that Mr Saleh had been convicted of very serious offences which were committed in company and in circumstances where he had no reason to get involved in the fight. She noted that Mr Saleh inflicted a very serious blow and that general deterrence was an important sentencing consideration reducing the relevance of personal mitigating factors.
5. In the case of Mr Assaad, the sentencing judge described the decision as 'very finely balanced'. She said that the comments that she had already made regarding the seriousness of the offending and the need for general deterrence applied equally to him. She noted however that Mr Assaad's involvement in the offending was more persistent and that he did not have the benefit, as did Mr Saleh, of a prior good record. However she accepted that youth and remorse were relevant factors. She referred to rehabilitation and family support as well as the 9 months that Mr Assaad had spent in custody. This latter factor together with strict bail conditions was said to have had a deterrent effect that his first term in custody did not.
6. In each case her Honour concluded that it was appropriate to suspend the sentences for a period of 18 months. In the case of Mr Saleh that was done unconditionally. In the case of Mr Assaad it was conditionally in that program and supervision requirements were imposed.
7. In order to take into account the time in custody the sentences on count 1 were reduced by two months and nine months respectively. This produced sentences in respect of Mr Saleh of 19 months on count 1 and 6 months on count 2 suspended for a period of 18 months unconditionally. It resulted in sentences of 15 months on count 1 and 9 months on count 2 for Mr Assaad suspended for 18 months on the conditions referred to.

1. The general principles applicable to a State appeal against sentence are well‑established. Where the State asserts manifest inadequacy, that is implied error, it is necessary to examine the sentences imposed from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to offences of that type, the place that the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances and antecedents of the offender.
2. It is not sufficient for an appeal court to come to a conclusion that it would have imposed a different sentence had it been in the position of the primary judge. It must be established that the sentence imposed was unreasonable or plainly unjust so that error can be inferred.
3. A sentence of immediate imprisonment is a sentence of last resort. Before imposing a sentence of immediate imprisonment a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend it. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case the objective features of an offence may outweigh personal considerations that favour suspension.
4. Where it is contended on a State appeal that suspended sentences should not have been imposed the question is whether it was open to the sentencing judge to impose such a sentence in the particular circumstances of the case. If such a sentence was available in the proper exercise of discretion, even if lenient, error has not been established. Another way of expressing the question is, was it open for the sentencing judge to fail to conclude that it was inappropriate to suspend the sentences of imprisonment he or she intended to impose: The State of Western Australia v Syred.[1]
5. The maximum penalty for doing grievous bodily harm to another person is 10 years' imprisonment: s 297(1) Criminal Code. The maximum penalty for assault causing bodily harm is 5 years' imprisonment: s 317(1) Criminal Code.
6. The three factors which are of general significance when assessing an offender's level of criminality for an offence of doing grievous bodily harm are:

(b) the nature of the act which caused the injury; and

(c) the background to and circumstances of the offence.

Baker v The State of Western Australia.[2]

1. As to the seriousness of the offences, count 1 was clearly the more serious offence both in regard to its nature and circumstances. It is not possible to determine which of the blows caused the facial injuries to Blake Slatter, either the initial blow by Mr Saleh or the subsequent blows by Mr Assaad and others. However, it is evident from the CCTV footage that Mr Saleh delivered a forceful blow to the face of Blake Slatter which was sudden and without warning. The blow appears to have substantially incapacitated Blake Slatter who appears disoriented and unable to offer effective resistance thereafter. Most of the blows delivered by Mr Assaad were then struck from behind or to the side of a plainly injured victim who in the later stages was leaning over a vehicle to support and shield himself. There was no provocation for any of the blows inflicted.
2. Blake Slatter had no time to defend himself by ducking or raising his arms. He was standing on concrete and against a metal railing or gate, carrying the potential for more serious injury to result from an assault of this kind. The initial forceful blow on an undefended victim had real potential to cause devastating injuries. The harm caused to Blake Slatter, whilst not life threatening, was plainly serious and required surgical intervention. Further, Mr Slatter has not made a full recovery and experiences lasting consequences in the form of facial numbness.
3. Mr Saleh's culpability is equal to that of Mr Assaad on count 1 because while the latter delivered more blows, the blow by Mr Saleh was the first and clearly most forceful. That assessment was accepted at first instance and on appeal.
4. The fact that these offences were committed in company was a seriously aggravating factor. The respondents were part of a larger group that acted as the aggressors in the confrontation. The victims for the most part did not fight back, rather they were backing away or trying to retreat from their attackers. At each stage of the attack there were multiple members of the respondents' group outnumbering the victims. The initial assault on the Slatter brothers was four upon two. The continuing assault on Blake Slatter as he retreated to the car was four upon one. The assault on Mr Pointing (the subject of count 2) was three upon one, with Mr Pointing offering no effective resistance at all. This is a factor that distinguishes this case from many other cases which involve drunken one‑on‑one violence between strangers. It placed the offending towards the higher end of the scale.
5. The dominant sentencing considerations for offences where grievous bodily harm is done are personal and general deterrence: The State of Western Australia v Mackey.[3] The sentencing judge correctly characterised the offending as 'a senseless incident of alcohol fuelled violence' in the early weekend hours that was a 'notoriously familiar story in Northbridge.'[4] As her Honour also recognised the fact that alcohol was involved does not in any way mitigate the offending. The need to impose sentences that reflected the need for general deterrence was an important consideration. The courts must be seen to stand firmly against alcohol fuelled violence in public entertainment areas.
6. As to the standard of sentences customarily observed for offences of doing grievous bodily harm, the State referred to the following cases: Allen v The State of Western Australia,[5] Trompler v The State of Western Australia,[6] Bowe v The State of Western Australia,[7] Kere v The State of Western Australia,[8] Yaqubi v The State of Western Australia [No 2],[9] Peake v The State of Western Australia,[10] The State of Western Australia v Ghilardi,[11] and Ellis v The State of Western Australia.[12]
7. In addition the respondents referred to Field v The State of Western Australia,[13] Djiagween v The State of Western Australia,[14] Hobby v The State of Western Australia,[15] The State of Western Australia v Ellement,[16] and The State of Western Australia v Camilleri.[17]
8. In respect of count 2, assault causing bodily harm, the State referred to Holden v The State of Western Australia,[18] Castrilli v The State of Western Australia,[19] Clarke v The State of Western Australia [No 2],[20] Ali v The State of Western Australia[21] and Spirovski v The State of Western Australia.[22]
9. In respect of count 2, the respondents referred to Tait v Le Boydre[23] and Norris v Conneely.[24]
10. These cases differed as to the circumstances of the offending and the personal circumstances of the offenders. Many of them were not truly comparable to this case.
11. In any event, the guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. The range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However a sentencing range for comparable cases does not fix the bounds of sentencing discretion in a particular case.
12. The circumstances in which the offences of doing grievous bodily harm and assault occasioning bodily harm can occur varies widely. Ordinarily a term of immediate imprisonment is the only appropriate penalty for an offence of doing grievous bodily harm. It has been noted that the range for offences of doing grievous bodily harm which are towards the upper end of the range of seriousness but not of the most serious kind is between 3 and 5 years' imprisonment: see Trompler and Bowe. Whilst there have been some cases of doing grievous bodily harm where suspended sentences have been imposed, they have almost invariably involved unusual circumstances, such as significant provocation. No such circumstances exist in this case.
13. In our view the seriousness of count 1, the doing of grievous bodily harm, was such that the sentencing judge was bound to conclude that it was inappropriate to suspend or conditionally suspend a sentence of imprisonment for that offence. In respect of each of the respondents the circumstances of count 1 were so serious that favourable personal circumstances in respect of each of them could not justify suspending their sentences. Nor did the sentences imposed adequately reflect the importance of general deterrence.
14. The imposition of a suspended sentence on count 1 in respect of Mr Saleh and a conditionally suspended sentence on count 1 in respect of Mr Assaad were unreasonable or plainly unjust in the circumstances of this case. Ground 1 is therefore established. It is unnecessary in these circumstances to consider ground 2 in respect of count 2 since any resentencing exercise must encompass that count in any event.

1. Mr Assaad filed and served an application in the appeal dated 12 November 2020 for leave to adduce additional evidence in the event that the State's appeal against Mr Assaad's sentences were to be allowed and this court proceeded to resentence him. The additional evidence comprises an affidavit of Alexander Smith affirmed 12 November 2020; in particular, the annexures to that affidavit.
2. Mr Saleh did not seek to rely upon any additional evidence at the hearing of his appeal.
3. The court has the necessary materials to resentence the respondents. In doing so we have had regard to the additional evidence in the appeal of the continuing steps towards rehabilitation taken by Mr Assaad since his sentencing. We consider that the limited involvement of Mr Saleh in count 2 justifies a concurrent sentence on that count. However, in the case of Mr Assaad his involvement in count 2 was active and significant. The fact that the two incidents were close in time is offset by the fact that a different victim was involved. For these reasons some degree of accumulation is appropriate, subject to totality considerations. Like the sentencing judge we would allow a 12% reduction in the case of Mr Saleh and a 10% reduction in the case of Mr Assaad under s 9AA of the Sentencing Act.
4. We consider that the new total effective sentence for Mr Assaad should be 3 years' immediate imprisonment and that this new total effective sentence should be arrived at by reducing the new individual sentence we would otherwise have imposed for count 2 from 10 months' immediate imprisonment to 3 months' immediate imprisonment and ordering the 3 months' immediate imprisonment to be served cumulatively upon the new individual sentence of 2 years 9 months' immediate imprisonment for count 1.
5. For these reasons, we allowed the State's appeals, set aside the sentences imposed by the sentencing judge, resentenced the respondents and made the other orders set out at [9] and [10] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Syred [2020] WASCA 185 per Buss P and Mitchell JA [22].

[2] Baker v The State of Western Australia [2018] WASCA 15 [21] ‑ [22].

[3] The State of Western Australia v Mackey [2017] WASCA 204 [45], [58].

[5] Allen v The State of Western Australia [2017] WASCA 203.

[6] Trompler v The State of Western Australia [2008] WASCA 265.

[7] Bowe v The State of Western Australia [2017] WASCA 166.

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

[9] Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187.

[10] Peake v The State of Western Australia [2015] WASCA 239.

[11] The State of Western Australia v Ghilardi [2015] WASCA 61.

[12] Ellis v The State of Western Australia [2013] WASCA 220.

[13] Field v The State of Western Australia [2013] WASCA 209.

[14] Djiagween v The State of Western Australia [2012] WASCA 141.

[15] Hobby v The State of Western Australia [2011] WASCA 197.

[16] The State of Western Australia v Ellement [2016] WASCA 1.

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

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

[19] Castrilli v The State of Western Australia [2019] WASCA 135.

[20] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.

[21] Ali v The State of Western Australia [2013] WASCA 55.

[22] Spirovski v The State of Western Australia [2017] WASCA 230.

[23] Tait v Le Boydre [2018] WASC 231.

[24] Norris v Conneely [2016] WASC 256.