Criminal law - Appeal against sentence - Irrelevant remarks by magistrate

Criminal Appeals Act 2004 (WA), s 14(2), s 31(4)(a)

Sentencing Act 1995 (WA)

1 The appellant appealed from the sentence imposed on him for the offence of aggravated assault occasioning bodily harm by a magistrate sitting in the Magistrates Court at Bunbury on 15 February 2008. The magistrate sentenced the appellant to 12 months' imprisonment and made him eligible for parole.

2 On 30 April 2008 McKechnie J granted leave to appeal. On 5 June 2008 I heard the appeal. At the conclusion of the hearing I allowed the appeal. I set aside the sentence of 12 months' imprisonment with eligibility for parole and re-sentenced the appellant to 10 months' imprisonment. I indicated that I would deliver written reasons for my decision. These are my reasons.

1. There has been a miscarriage of justice because the learned magistrate sentenced the appellant on an incorrect factual basis. viz; that the appellant had struck the complainant 6 times to the head with a golf club, using considerable force.
2. The learned magistrate imposed a sentence that was excessive in the circumstances in that it was based on an incorrect factual basis. viz; that the appellant had struck the complainant 6 times to the head with a golf club, using considerable force.
3. There has been a miscarriage of justice because the learned magistrate had regard to irrelevant matters viz the general violence of Aboriginal men and the perceived conflict of interest of the Aboriginal Legal Service in acting for violent Aboriginal offenders including the appellant.

4 On 14 January 2008 the appellant pleaded guilty to a charge which alleged that on 4 April 2007 at Collie he unlawfully assaulted his former partner and thereby did her bodily harm, in circumstances of aggravation namely that he was in a family and domestic relationship with the victim of the offence.

5 The magistrate remanded the appellant in custody to the Bunbury Magistrates Court for sentencing on 25 January 2008 and ordered a verbal pre-sentence report for that appearance.

6 The appellant had originally been on bail after having been charged with the offence. On 7 May 2007 a bench warrant had been issued for his arrest due to his non-compliance with bail conditions. There is no record of the appellant having appeared in court on 25 January. The next recorded appearance is that on the date of sentencing, being 15 February 2008.

7 On that date a written pre-sentence report was before the magistrate. The prosecutor presented the following facts to the court:

At 9.15 pm, Tuesday 3 April 2007, the accused was served with a 24-hour police order. The accused and the complainant, Jasmine (sic) (indistinct) Michael (indistinct) over a 24-hour period. The accused and the complainant have been in a domestic relationship for a number of years. The accused was bound by the order to, among other things, not communicate or attempt to communicate with the protected person, enter or remain upon 2 Irwin Street, Collie or be within 100 metres of the protected person. The order was served at 100 Ogden Street, Collie after he was removed from the address in Irwin Street.

About 5 am on 4 April 2007, the accused walked back to 2 Irwin Street, Collie and banged on the front door. The complainant opened the door to the accused and he then entered the house. On entry to the complainant's house, the accused abused her for calling the police the previous evening. He then punched the complainant in the face several times with closed fists, causing lacerations near her left eye as well as bruising to the face. This laceration required three stitches. The complainant went to her bedroom and lay down on the bed. The accused continued the assault using a golf club to hit the complainant on the back of her head at least six times.

The accused used sufficient force to break the head of the club and cause long welts and bruising to the complainant's back. The complainant left the bedroom and went to the children's bedroom. She left the house with the children and called the police. The police located the accused asleep in the main bedroom of the house.

8 The prosecutor then referred to the appellant's prior criminal record. It revealed a substantial criminal history from when the appellant, who was then 39, was a child through to November 2006. The record was mainly constituted by property, minor drug, traffic and street offences. The appellant had been convicted in the Collie Magistrates Court on 8 November 2006 for breaching a restraining order made by the police. The appellant also had a previous conviction for assault occasioning bodily harm in January 1997 for which he had been placed on an intensive supervision order for two years and ordered to perform 150 hours community service work. His only other convictions for assault as an adult were in 1989.

9 The appellant's then counsel, apparently an employee of the Aboriginal Legal Service of Western Australia (ALS), presented a plea in mitigation, on behalf of the appellant. He handed to the magistrate a letter which he said related to the appellant's mother. That letter is not before me. The appellant's counsel submitted that this offence was the first time the appellant had struck his de facto partner in 23 years of their relationship. He told the magistrate that the problem arose because the complainant had been using amphetamines and spending the family's money on those drugs. He submitted that the appellant had been unable to cope with the complainant's continuing drug use and, as a result of built up stress, he assaulted her. The appellant acknowledged that he had also used amphetamines in the past but claimed to have now stopped doing so.

10 The appellant's counsel submitted that the appellant was remorseful for the assault. The relationship had ended and he intended to live with his mother, who was extremely ill. Counsel said that the appellant's mother 'might not have a lot more time to live'. Counsel submitted that the appellant had employment opportunities and he was prepared to go to domestic violence counselling.

11 His Honour then mentioned the first of what were six references to the appellant having assaulted the complainant to the back of the head with the golf club. On this first occasion his Honour said:

... are you seriously suggesting to me that [the appellant] who punched his wife three times or a couple - to the face and gave her stitches, and then hit her on the head six times with a golf club so hard that the golf club was damaged, are you seriously suggesting that this doesn't justify a prison sentence?

12 The exchange continued between his Honour and counsel. Another example of the magistrate's comments is as follows:

Well, when you hit someone - and let everyone know this, let all your clients know this. Let everyone know this, that if you hit your wife on the head with a golf club six times, you go to gaol, and that's what the courts have got to do, they've got to send out the message to people, there's got to be a general - a specific deterrence to [the appellant] himself, and also a general deterrence to everyone, and let the word go out that if you hit your wife six times on the head with a golf club, you go to gaol.

And I think it's wrong for the ALS to keep coming back here when there's this sort of gross violence from Aboriginal men on the Aboriginal women; for the ALS to keep coming back here telling the courts to say they shouldn't go to gaol. The ALS is responsible also for Aboriginal women, not only violent Aboriginal men.

14 The appellant's counsel pointed out that he was not representing the complainant in the case. His Honour said:

The ALS represents the whole of the Aboriginal community. I work [sic] with the ALS and I know this.

15 The exchange continued between the magistrate and the appellant's counsel concerning the appropriateness of ALS lawyers representing male perpetrators of domestic violence. To set the exchange out in full would only exacerbate the error the magistrate made when he initiated the remarks in the middle of the plea in mitigation. It is sufficient for me to say that the appellant's counsel rightly pointed out that he had an obligation to do the best he could for the client he represented. The magistrate opined that the ALS had a 'gross conflict of interest' because it only acted for men. He said that he thought that it should act for female complainants.

16 The magistrate referred to the appellant's extensive prior criminal record and noted that he had read the pre-sentence report. The appellant's counsel concluded his plea in mitigation by referring to the appellant's personal circumstances.

17 The magistrate then proceeded to sentence the appellant to 12 months' imprisonment and made him eligible for parole. In sentencing him, the magistrate expressed the following view:

... hopefully the message will get out to violent husbands that if they treat their wives with such contempt that they are prepared to hit them on the head with an object, they are going to gaol.

18 The parties were in agreement that the prosecutor misread the facts to the court by stating that the appellant had used a golf club to hit the complainant on the back of her head at least six times. The facts contained in the prosecution's statement of material facts, and intended to be alleged by the prosecution, were that the appellant had hit the complainant on her back with the golf club at least six times. It is evident from the transcript that the error was not picked up by anybody in court on 15 February 2008.

19 The appellant submitted that the erroneous facts were relied upon by the magistrate and were a part of the factual matrix which resulted in him determining that a sentence of 12 months' imprisonment was the appropriate penalty for the offence. This appears to be correct as the magistrate made a brief note on the prosecution notice of the salient facts, including that the complainant had received '6 x hits to head' and he also mentioned it six times in court.

20 The appellant relied upon the well known dicta in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 where the High Court said that if in exercising the sentencing discretion the judicial officer had mistaken the facts then 'his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so'.

21 The appellant submitted that the factual error, although not the fault of the magistrate, was of such significance that I should re-sentence the appellant on the correct facts so that justice was not only done but that it was seen to be done. It was submitted that a failure to re-sentence would leave in place a sentence imposed on an incorrect factual basis, leaving the appellant with a justifiable sense of grievance. It was further submitted that the correct facts were less serious than the mistaken facts such that any sentence I imposed should be less than 12 months' imprisonment.

22 The respondent's counsel conceded that the prosecutor incorrectly read the facts and that the appellant had been sentenced on an erroneous factual basis. However, she submitted that the severity of the assault on the complainant was such that the sentence could not be said to be manifestly excessive nor could it be said that a substantial miscarriage of justice had occurred.

23 The maximum penalty for the offence of aggravated assault occasioning bodily harm is 7 years' imprisonment if dealt with on indictment or 3 years' imprisonment and a fine of $36,000 if dealt with summarily.

24 The respondent submitted that the offence was aggravated by the following features:

1. The victim was the complainant's de facto partner for a period of approximately 20 years;
2. The appellant punched the complainant to the face several times with such force that she sustained bruising to her face and a laceration requiring three sutures;
3. The appellant struck the complainant across the back with a golf club at least six times during the attack;
4. The appellant struck the complainant so forcefully with the golf club that he caused the head of the golf stick to break; and
5. The offence was committed whilst the appellant was subject to a police order which bound him, amongst other things, not to communicate or attempt to communicate with the complainant.

25 The respondent submitted that, whilst there is no tariff for an offence of this type, there are a number of cases which demonstrated that a sentence of 12 months' imprisonment was well within the range of appropriate sentences for such an offence. In support of this proposition, the respondent cited Iveson v The State of Western Australia [2005] WASCA 25, State of Western Australia v Anderson [2004] WASCA 157, Miller v The Queen [2004] WASCA 84 and Mead v Couper [2000] WASCA 345.

26 The respondent's counsel submitted that the personal circumstances of the appellant provided little mitigation. She acknowledged that the appellant deserved a reduction in his sentence due to his plea of guilty but that it was not an early plea.

27 As the respondent submitted, the sentence imposed by the magistrate was not manifestly excessive. It was within the range of appropriate sentences for this type of offence. However, the appellant has established that the magistrate made a factual error when he took into account the aggravating factor that the appellant had hit the complainant six times on the back of the head to increase the length of the sentence imposed on the appellant.

28 Therefore, the appellant is entitled to have the appeal allowed, his sentence quashed and to be resentenced on the correct facts unless the relevant law provides otherwise.

29 The Criminal Appeals Act 2004 (WA) s 14(2) provides that in respect to appeals from a decision of a court of summary jurisdiction, even if a ground of appeal might be decided in favour of an appellant, the court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred. In McDonald v White [2007] WASCA 213 [28] the Court of Appeal said that in the circumstance where a magistrate had made an error in failing to reduce a sentence on the basis of the accused's early plea of guilty, an appeal from the magistrate's decision ought to be allowed and the appellant sentenced afresh unless the appeal court concluded that even allowing for a plea of guilty it would not have imposed any different sentence. The Court of Appeal cited the Criminal Appeals Act s 31(4)(a) as the applicable statutory provision. With respect, as Johnson J said in Berry v Walker [2008] WASC 130 [63], s 31(4)(a) does not apply to a single judge of the Supreme Court hearing an appeal from a decision of a magistrate. Section 31(4)(a) only applies to sentencing appeals to the Court of Appeal where the sentence under appeal was imposed as a result of a conviction on indictment or by a superior court on committal from a court of summary jurisdiction. Section 14(2) governs sentencing appeals to a single judge from the decision of a magistrate.

30 In my opinion, it is not appropriate to interpret s 14(2) as if it is an identical provision to s 31(4)(a). Parliament has provided a different test in respect to an appeal from a magistrate's sentence to a single judge as opposed to an appeal from a judge's sentence to the Court of Appeal. Having done so, it is the responsibility of the courts to give effect to the relevant provision.

31 I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised.

32 However, not every case will be able to be so analysed. In Weiss v The Queen [2005] HCA 81; [2005] 224 CLR 300 [45] the High Court considered the meaning of a similar provision from Victoria in the context of an appeal against conviction. The provision said that the Court of Appeal may, notwithstanding that in its opinion that the point raised in the appeal might be decided in favour of the appellant may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The court said:

... no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

33 These principles can be extrapolated to an appeal against sentence to which the Criminal Appeals Act s 14(2) applied. There will be cases where it is appropriate to allow an appeal against sentence even though the sentence imposed by the magistrate was not excessive or greater than the appeal court would have imposed if sentencing the appellant at first instance. Those cases will be uncommon and as in the case of appeals against conviction it is not possible to articulate the criterion to identify the cases which will fall into this category.

34 It seemed to me that the present case was one where the appeal ought to be allowed and a different sentence substituted. I was not satisfied that the criterion in s 14(2) for the dismissal of the appeal had been met. A careful reading of the magistrate's sentencing remarks led me to the view that were it not for the erroneous allegation that the appellant had assaulted the complainant on the back of the head, the magistrate would have imposed a lesser penalty; that is, he found the allegation that the complainant had been hit on the back of the head repeatedly to be an aggravating factor which affected the length of the appellant's term of imprisonment. Once the error was identified, in order for justice to be seen to be done, it was necessary for a somewhat lesser penalty to be imposed which was nevertheless within the range of appropriate penalties for the offence. To have left the penalty as it was would have been unjust to the appellant as the clear inference to be drawn from the sentencing remarks was that if the true facts had been alleged before the magistrate the appellant would have received a lesser penalty at first instance. It was not possible for me to conclude that despite the error made in the sentencing proceedings, no substantial miscarriage of justice had occurred.

35 For these reasons I allowed the appeal, set aside the sentence of 12 months' imprisonment and imposed a sentence of 10 months' imprisonment.

36 As I allowed the appeal on grounds 1 and 2, it is unnecessary for me to determine ground of appeal 3. However, I wish to make some remarks in respect to it.

37 It was the appellant's counsel's function and duty to present a plea in mitigation of sentence before the magistrate. If a particular form of disposition was on counsel's instructions, on the facts and on the law reasonably open then counsel had a duty to seek it. Not to do so may have prejudiced the appellant's rights on appeal: R v Bloom [1976] VicRp 67; [1976] VR 642, 643 - 644.

38 On the other hand, it was also open to the magistrate, as he did, to interrupt counsel to advise him that, in his view, the suggested disposition was not reasonably open.

39 The sentencing hearing only significantly diverted from its proper course when the magistrate broadened his comments to criticise the ALS, as a body, because it had an alleged conflict of interest in representing aboriginal men accused of domestic violence offences against aboriginal women and ALS counsel, in general, because they submitted to courts that aboriginal men convicted of domestic violence offences should not be imprisoned.

40 The appellant had a right to have his sentence determined according to law. That principle meant that the magistrate had to take into account when sentencing the appellant the facts of the present case, the circumstances of the appellant and the sentencing principles which are set out in the Sentencing Act 1995 (WA), as those principles have been interpreted and explained by the courts. The magistrate's comments gave rise to a distinct possibility that the appellant and other observers would reasonably believe that the magistrate may have taken irrelevant matters into consideration in determining the appellant's sentence. Consequently, such views should not have been expressed during the sentencing hearing.

41 In making these observations, I do not express a view on the merits of the magistrate's opinions. It was inappropriate for the magistrate to express his opinions during sentencing proceedings and it would be inappropriate for me on the determination of the appeal, to express my opinions on the same issues.