Walker v Allen [2006] WASC 89

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

Latham [2000] WASCA 338; (2000) 117 A Crim R 74

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213

Etrelezis v The Queen [2001] WASCA 327

Janerka v Bethell [2002] WASCA 198

1 MCKECHNIE J: On 21 March 2006 the appellant was sentenced to a term of 9 months' imprisonment relating to his plea of guilty to one charge of unlawful wounding.

2 Subsequently, he sought leave to appeal and bail pending appeal against the sentence and bail pending his appeal. As the issue is in short compass I directed that both parties present full argument about the appeal on the application for bail. Leave to appeal is granted.

3 The transcript of all the proceedings in the Magistrate's Court is incomplete but there is transcript of the plea in mitigation and sentencing.

4 By consent, counsel for the appellant handed up a statement of the complainant. That statement discloses that the complainant was at the All Seasons Hotel (formerly the Mecure Hotel) in Karratha. While he was taking a bag out to a car he accidentally bumped the appellant who pulled him up and started talking to him. The complainant ignored him and kept trying to walk towards the exit. The appellant pulled him up again, so the complainant turned around and pushed his left shoulder into the appellant's left shoulder. As this happened, the appellant swung his right arm, with his glass still in his hand, towards the complainant's face hitting him in the left side of the face. The complainant punched the appellant a couple of times and he went to the ground. The complainant went to hospital and received treatment to a 5 centimetre cut to his face requiring six stitches. The appellant has no memory of the incident.

5 It appears from the plea in mitigation made by counsel before the Magistrate that following the incident the appellant was beaten up by a number of other people in the hotel. The prosecutor had indicated previously that while on the floor, in the course of the beating, the appellant had been kicked.

6 The Magistrate had obtained a pre-sentence report. She considered that the only appropriate disposition was a sentence of 9 months' imprisonment to be immediately served.

"Ground 1

The learned Magistrate erred in the exercise of her sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances of the offence and of the appellant personally.

Particulars

a) The learned Magistrate erred by failing to give sufficient weight to the following factors:

i. The appellant's plea of guilty.

ii. The appellant's demonstrated remorse.

iii. The complainant's actions, behaviour and degree of provocation that arose from the complainant's actions immediately before the commission of the offence.

iv. The lack of any premeditation.

v. The favourable Pre-Sentence Report.

vi. The $3,000 fine imposed by the learned Magistrate for the offence of breach of bail.

vii. The injuries that the appellant suffered as a result of the incident.

b) The learned Magistrate erred by giving undue weight to the following matters:

i. The appellant's conviction for breaching the bail conditions imposed in relation to this offence, namely his failure to appear at court on an earlier occasion.

ii. The learned Magistrate's erroneous finding that the appellant had failed to recognise that he had been diagnosed with a psychiatric problem.

iii. the injuries suffered by the complainant."

7 The Magistrate acknowledged the plea of guilty and the remorse together with, relatively speaking, the appellant's prior good character. She concluded:

"... As the Sergeant has indicated these sorts of incidences (sic) in bars are far too prevalent, not only in this jurisdiction, in the metro area and elsewhere.

There is a need for there to be a specific and a general deterrent so that others are discouraged from acting in such a serious way, which has such consequences to a victim. I am satisfied that we have reached a sentence of last resort ..."

8 It was open for the Magistrate to conclude that the offence was of such seriousness that general deterrence required a term of imprisonment. Often Magistrates are in a better position than other judicial officers in discerning trends in crime. A bar fight may be one thing but the use of a glass to the side of the face raises the fight to a different level and requires strong intervention and a sentence of general deterrence.

9 The Magistrate expressly took into account matters of mitigation and, although she did not assign a specific discount to the plea of guilty, sentenced by what is sometimes called intuitive synthesis: Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213. The sentence of 9 months' imprisonment is within the range of a sound sentencing discretion. Ground 1 fails.

"Ground 2

The learned Magistrate erred in law by failing to properly consider all other sentencing options available in the circumstances, other than an immediate term of imprisonment, including a suspended term of imprisonment."

10 This is the ground upon which the appeal turns. Counsel for the appellant argues that the Magistrate fell into error by reversing the process, first deciding that imprisonment was appropriate and then considering a suspended sentence. Following the plea in mitigation, and before calling upon the prosecutor, the Magistrate said (TS 4):

"I have decided that a sentence of last resort has been reached. I have really only got to decide whether it's appropriate to suspend it or not."

"... and I also consider that it is not appropriate to suspend the sentence given the seriousness of the charge and given the seriousness of the impact upon Mr Hicks."

12 The Magistrate did not fall into the error asserted. Imprisonment is the sentence of last resort. It is only when that stage has been reached that the sentencer must consider whether it is necessary for the sentence to be served immediately or suspended. If the last resort has not been reached then another sentencing option will be appropriate and a suspended sentence of imprisonment is inappropriate. This is the approach favoured by the majority in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 as explained by Parker J in Latham [2000] WASCA 338; (2000) 117 A Crim R 74. See also Sentencing Act 1995 (WA) s 76(2).

13 There remains for consideration the question whether the sentence should have nevertheless been suspended. I may not substitute my own opinion for that of the Magistrate merely because I would have exercised the sentencing discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

14 A sentence is a conclusion reached after the sentencer has taken into account and weighed many factors. It is only if the conclusion is plainly wrong that an appellate court can intervene.

15 The Magistrate cited two reasons, both to do with seriousness, in declining to suspend the sentence. These were valid reasons but the question is: Whether all the circumstances, looked at afresh, were taken into account? The appellant had a relatively minor record and had never been imprisoned before. He was employed full-time. The Magistrate accepted that he was remorseful. He had, as I have said, pleaded guilty. The action was unpremeditated. The matters set out in Ground 1(a) are relevant to the decision whether to suspend the sentence.

16 In all the circumstances, I conclude that the Magistrate did err in failing to suspend the sentence. The circumstances are such that while imprisonment was the only option for such a serious offence, having regard to all the circumstances and matters personal to the appellant, the proper result was to suspend the sentence.

17 In setting the time of the suspension I take into account the time the appellant has spent in custody.

18 The appeal is allowed. The sentence of 9 months' imprisonment imposed is suspended for a period of 7 months.