Ugle v Wells [1999] WASCA 21

Sentencing Act 1995

Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 612

Brown v Lynch (1982) 5 A Crim R 404

House v The King [1936] HCA 40; (1963) 55 CLR 499

Jarvis v R, unreported; CCA SCt of WA, Lib No 930341; 14 June 1993

Mill v R (1988) 166 CLR 59

Nevermann v The Queen (1989) 43 A Crim R 347

R v Stebbings (1990) 4 WAR 538

Smedley v R, unreported; CCA Sct of WA; Library No 990146, 23 March 1999

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

Weng Keong Chan v The Queen (1989) 38 A Crim R 337

1 WHITE J: The appellants in this consolidated appeal were convicted on 18 November 1998 in the Court of Petty Sessions (Mr K Fisher SM) upon their own pleas of guilty of certain offences. These arose from the fact that, on 2 May 1998 they had together pursued the complainant, Mrs Joy Bridgette Ugle through a street into a service station. The service station was operated by the complainant Ms Deidre Michelle Wickham. The appellants were armed with a wooden stick and a metal bar or pipe, respectively. In the service station, the appellants both assaulted the two complainants, beating them with their weapons. Ms Wickham's husband intervened on her behalf and was also assaulted.

2 It appears that the incident arose as the result of a long-standing feud or quarrel between the complainant, Mrs Ugle and the appellant Ugle. The complainant, Ms Wickham, had no involvement in that quarrel and the assault upon her appears to have been effected simply because she was in the way - the complainant, Mrs Ugle had taken refuge behind her when pursued into the service station.

3 The appellant Ugle was convicted of one charge of breaching a restraining order (in relation to Mrs Ugle), one charge of assault occasioning bodily harm (upon Mrs Ugle) and one charge of common assault (on Ms Wickham.)

4 The learned Magistrate sentenced the appellant Ugle to 18 months' imprisonment on the charge of assault occasioning bodily harm, 6 months' imprisonment on the charge of common assault and 3 months' imprisonment on the charge of breaching the restraining order, all sentences to be served cumulatively.

5 The appellant Yarran was convicted of one charge of assault occasioning bodily harm (upon Mrs Ugle) and one charge of common assault (on Ms Wickham.) The learned Magistrate sentenced the appellant Yarran to 18 months' imprisonment on the charge of assault occasioning bodily harm and 6 months' imprisonment on the charge of common assault both sentences to be served cumulatively.

6 In the case of the appellant Ugle, it is apparent that the criminal act which constituted the breach of the restraining order was the same as that which constituted the offence of assault occasioning bodily harm. Ms Sellers, for the crown, conceded, very properly in my opinion, that the sentences on the charge of assault occasioning bodily harm to Mrs Ugle and the charge of breaching the restraining order, arising from the identical criminal act, should have been directed to be concurrent with one another. I agree and the appeal must succeed to that extent.

7 While counsel for the appellants argued that the sentences imposed were "crushing" and that the totality principle required that all sentences imposed should be concurrent with one another, I am of the opinion that there is no substance in either of these grounds. I do not accept that a sentence of 27 months' imprisonment can meaningfully be described as "crushing". The offences were, in my opinion, very serious - an attack by two armed men upon defenceless women should in the ordinary way attract a severe sentence. The individual sentences imposed were entirely within the range of a sound sentencing discretion and the aggregate did not in any way offend against the totality principle.

8 The other aspect of importance in this appeal is the question whether the sentences imposed on the appellants in respect of the offences of assault occasioning bodily harm and of assault, involving two victims and effected more or less contemporaneously, should have been made concurrent with one another.

9 Counsel for the appellants argued that the two offences were committed in the course of the same transaction, more or less at the same time and that, accordingly, the learned Magistrate erred in imposing cumulative sentences. Counsel referred to the decision in Esteban v Wolpers, unreported; SCt of WA; 16 November 1988 (per Nicholson J) and to The Queen v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998 in support of his submission.

10 The facts in Esteban were described by his Honour as follows:

"Somewhere around 9.45 pm these three persons together with a female friend left the ship and went to their parked vehicle on the wharf. While waiting in or at the car for farewells to be said they were approached by Customs Officer Gentelli. He inquired if a packet of raw peanuts had been removed from the ship, examined the peanuts and handed them back. He was advised the appellant's mother had purchased the peanuts in North Perth. As found by the Magistrate, the defendant threw the peanuts to the ground, struck Mr Gentelli a blow by the fist to the face and thereafter went towards him again. There were several blows to Mr Gentelli's body. The appellant was restrained. Mrs Kent endeavoured to restrain Mr Gentelli from using his walkie-talkie radio to summon assistance and she struck his chest. Mrs Kent was charged with and convicted of assault and fined $120.

The Magistrate found no provocation on the part of Mr Gentelli.

Approximately 10 minutes after Mr Gentelli first approached the vehicle, Customs Officer Rodda arrived at the scene. The appellant attempted to strike Mr Gentelli; Mr Rodda intervened and was punched in the face. He went to ground with the appellant and the appellant clawed his face causing scratches.

A Customs Officer Motroni approached the appellant who used intimidatory words towards him. The appellant was convicted of endeavouring to intimidate that officer and was fined $150.

Mr Gentelli and Mr Rodda were both taken to the Fremantle Hospital. It was not until a number of days later that Mr Gentelli was found to have a broken nose.

The result of application of handcuffs to the appellant's wrists was that they were strapped for a period of two months thereafter.

Customs Officer Gentelli and Rodda were wearing uniforms appropriate to their office at the time of these occurrences."

11 His Honour went on to consider the authorities relevant to the matter, saying:

"When a number of offences arise out of substantially the same act, circumstances, or series of occurrences, concurrent sentences should be imposed; Brown v Lynch (1982) 5 A Crim R404 at 407. In Attorney-General v Tichy (1982) 30 SASR 84 at 92-3 Wells, J said:

' ... what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.'

In Australia there appears to be a practice of regarding a succession of crimes each being the commission of the same offence, committed within a short space of time, as appropriate for concurrent sentences, although this practice is not invariable; Murrell v R (1984) 15 A Crim R303 at 315 citing Robinson v Samuels (1977) SASR 137. The principle even applies where the offences were committed within a space of a few weeks and in other jurisdictions; R v Houston (1982) 8 A Crim R392. The question is whether the offences arise "out of the same facts" so that they should be concurrent or whether they are 'entirely distinct' so that they should be cumulative; R v Carey (1975) 11 SASR 575 at 577. See also R v Melville (1956) 73 WN (NSW) 579 at 583 and R v Bentham [1973] QB 357.

"In my judgment the offences of which the appellant was here convicted could not be characterised as separate invasions of the community's right to peace and order. They are not truly two or more incursions in criminal conduct. In my view they are rightly to be seen as facets of a course of criminal conduct.

While it is correct that two different officers were involved, the timing between the two offences was short and on the scale normally taken into account in accordance with the authorities, of no significance. Not only were the offences proximate in time but they occurred in the same vicinity in relation to officers of the same organisation and obviously all stemmed from the appellants aggression, for whatever reason, in relation to the exchange relating to the peanuts. In my view his Worship was in error in treating the offences separately and in making the resulting sentences cumulative."

13 In The Queen v Legg Murray J (with whom Walsh and Wallwork JJ agreed) said, at pages 21-23:

"As to when it is proper to make an order for cumulative service of a sentence, courts in this jurisdiction have always been guided by the general rule which is sometimes referred to as the 'one transaction' principle. The nature of the rule was clearly stated by Wallace J in Ruane v R (1979) 1 A Crim R 284 at 286 where his Honour said:

'Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefor is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question. That is only an ordinary working rule; ... '

His Honour relied upon the decision of the English Court of Appeal in Kastercum v R (1972) 56 Cr App R 298. The judgments of Jones and Brinsden JJ in Ruane were to the same effect.

In Shaw v R (1989) 39 A Crim R 343, the judgments of Brinsden and Rowland JJ, with whom Malcolm CJ agreed, refer to the general principle and Ruane was followed. At 347, referring to the text by Thomas, Principles of Sentencing (1st Ed, 1970), Brinsden J said that:

'... the fact that two offences occur close together in time does not necessarily mean they will be treated as part of the one incident, "if they are essentially different in character and involved different subject matter". At p53 by the same author, it is stated "where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive". That is because the offences, when taken together, constitute a single invasion of the same legally protected interest. But the fact that offences are committed simultaneously, or close together in time, does not necessarily mean they amount to a single transaction.'

In my view, there could be no reason to depart from the ordinary working rule in this case. It was proper for the learned sentencing Judge to regard, as he did, each group of offences as essentially involving the one transaction. That was because these were cases where the offences of stalking themselves involved a substantial element of continuing behaviour, the members of the Riordan family generally were targeted, rather than specific members of that family, the offences committed against each of the members of the family were committed at the same time or over the same period of time, and, as has been mentioned in respect of the offences the subject of the second indictment, it was quite fortuitous whether the telephone call made by the respondent was answered by Mr or Mrs Riordan. In those circumstances it would be wrong to make any such sentences operate cumulatively merely for the purpose of achieving an aggregate term of imprisonment of some substance."

14 Sentencing is very much a matter of discretion for the trial Judge and authorities in relation to sentences in other matters and other circumstances, while often helpful, are not binding in the same sense as are decisions on the substantive law. As Wallace J said in the passage from Ruane v R (1979) 1 A Crim R 284 at 286 cited by Murray J in The Queen v Legg, the principle expressed is "only an ordinary working rule". The reason for the rule, as suggested by Wallace J, is that to make sentences cumulative in the circumstances referred to by his Honour results in a total which very often proves to be much too great for the incident in question.

15 As I have indicated, the offences were very serious. The maximum penalty on a charge of assault occasioning bodily harm is imprisonment for 5 years and for common assault is 18 months. In those circumstances, the aggregate period of 2 years' imprisonment for the two offences cannot, in my opinion, be described as "much too great for the incident in question", to use Wallace J's words. Nicholson J, in Esteban (supra) referred to the case of R v Houston (1982) 8 A Crim R 392 in the passage cited from his Honour's judgment. In that case, the relevant remarks of Starke J, with whom Crockett and O'Bryan JJ agreed, are to be found at page 398:

"[Counsel] submitted, and I think with some force, that as these offences were committed within the space of a few weeks, if they had all been commited in this jurisdiction and if brought up for trial at about the same time, there would inevitably have been some concurrency between the sentences imposed. But because one of the offences was committed in New South Wales and one in Victoria that could not be achieved by way of concurrency. However, though, he argued, it could not be done by way of concurrency, some allowance should be made for it in the fixing of the sentence."

16 In that case, the two offenders having been sentenced to 7 years' imprisonment for the offence of armed robbery in New South Wales and having been convicted in Victoria of a similar offence in that State, were thereupon sentenced to 7 years' and 6 years' imprisonment respectively - such sentences being proper for the offence in question. The Court of Criminal Appeal in Victoria, for the reasons stated by Starke J in the passage quoted above, reduced the sentence in respect of the Victorian offence to 3 years' and 2 years' imprisonment respectively.

17 In the case before the learned Magistrate, the sentences could have been structured differently, but with the same effective result, had his Worship sentenced the appellants to 2 years' imprisonment on the charge of assault occasioning bodily harm and to 6 months' imprisonment for the common assault, both sentences to be served concurrently. Such a sentence would not, in my opinion, have been such as to attract interference on appeal.

18 It is necessary to look at the total of the sentences and to determine whether it is excessive for the criminality of the conduct involved. In the present case, I am not persuaded that it is or that the sentences imposed should be interfered with on appeal, save to the extent which I have already mentioned, in respect of the sentence for the breach of the restraining order.

19 The question in this appeal is whether the discretion of the learned Magistrate miscarried when his Worship directed that the sentences on the charges of assault occasioning bodily harm and of assault should be served cumulatively. Although the assaults were committed more or less contemporaneously, there were two distinct victims, whose circumstances were entirely different and, while the assault on Mrs Ugle was occasioned by the feud to which I have referred, that on Ms Wickham was entirely gratuitous.

20 There is a strong presumption in favour of the correctness of the decision appealed from and I am not satisfied that the appellants have demonstrated that there was an error on the part of the learned Magistrate which consists of his acting upon a wrong principle or giving weight to irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts or that his Worship's discretion miscarried.

21 In the result, the appeal of the appellant Ugle succeeds to the extent that the direction that the sentence for breaching the restraining order be served cumulatively upon the other sentences is set aside and I order that that sentence is to be served concurrently with the sentence of 18 months' imprisonment on the charge of assault occasioning bodily harm. This appeal is otherwise dismissed.

22 The appeal by the appellant Yarran is dismissed.