ZINGA -v- JOHNSON [2012] WASC 216 (21 June 2012)

3 There are four grounds of appeal. They are as follows:

1. The learned Magistrate erred in law by failing to take into account time served by the Appellant whilst remanded in custody awaiting trial.

(i) The Appellant was remanded in custody awaiting trial from 13 March 2010 until 28 March 2011.

1. Alternative to ground 1, the learned Magistrate erred in law by failing to give adequate weight to the amount of time the Appellant served in custody whilst awaiting trial.
2. As a consequence of ground 1, or alternatively ground 2, the sentence imposed is manifestly excessive.
3. The period of suspension of imprisonment imposed by the learned Magistrate was, in all the circumstances, manifestly excessive having regard to the following:

(i) The Appellant's personal circumstances and antecedents;

(ii) The nature of the offence and the circumstances in which the offence was committed; and

(iii) The learned Magistrate did not provide reasons to explain why she suspended the imprisonment for a period of 24 months.

4 In essence, the primary issue in this appeal is whether the magistrate failed to take into account the time that the appellant had spent in custody prior to being sentenced in determining the length of the suspended sentences for the two assault offences. The secondary issue is whether the period of suspension, being 24 months, was manifestly excessive.

5 As regards the charge PE 17074 of 2010 the facts were that on 16 December 2009 the appellant assaulted his then de facto partner and in doing so caused her bodily harm by biting her upper arm so as to break the skin. Other injuries had also been alleged but were not found to be proven. This assault occurred in circumstances of aggravation being in the context of a family or domestic relationship. After being charged the appellant was released on bail. A condition of that bail was that the appellant not approach the victim.

6 On 13 March 2010 the appellant approached the victim in breach of his bail conditions and again assaulted her. This assault involved repeatedly punching the victim to her face and kicking her more than once. Photographs tendered to the magistrate show significant bruising and swelling to the victim's face and a bruise below the right shoulder.

7 After being charged with the second offence the appellant was remanded in custody on 15 March 2010. He remained in custody until 28 March 2011 when he was acquitted on unrelated charges and released on bail.

8 The appellant entered pleas of not guilty to both charges. He was convicted following separate trials before different magistrates. The magistrate who conducted the second trial sentenced the appellant in respect of both matters, stating that she had acquainted herself with the transcript in respect of the first matter.

9 A presentence report was available at the time of sentencing. It stated that the appellant had minimised the seriousness of his offending behaviour and continued to ascribe blame for his actions to the victim. It was noted that the appellant lacked insight into his behaviour and believed that he did not have any issues with controlling his anger. The report stated that the appellant had outstanding treatment needs in relation to domestic violence but had said during the interview that he did not wish to participate in any such programme. He expressed disinterest in attending programmes or undertaking supervision in the community.

10 Given the appellant's stance, it was felt that he would be difficult to manage. However, it was suggested that if a communitybased option was granted it should include supervision and programme requirements in order to allow the appellant an opportunity to address his offending behaviour. The report noted that the appellant had expressed an intention to return to Uganda within the next six months and that he appeared to have developed some positive goals for the future.

11 The prosecutor noted that the appellant had demonstrated little empathy with the victim. It was also noted that there appeared to be issues in regard to the consumption of alcohol over a lengthy period and this was reflected in the appellant's criminal record. The prosecutor submitted that the appellant's refusal to acknowledge this issue was a hurdle that would need to be met. The prosecutor submitted that the assaults were traumatic to the victim and that the first assault had resulted in the victim having to receive medical treatment.

12 The prosecutor submitted that the second assault was particularly aggravated by the fact that it had occurred whilst the appellant was prohibited by bail conditions from contacting the victim. Even if, as had been suggested, the appellant had approached the victim as a result of an invitation, this involved a wilful disobedience of a court order. The prosecutor noted that both matters had proceeded to trial and that the complainant had been extensively crossexamined. There was, accordingly, an absence of any mitigation that might flow from a plea of guilty.

13 The prosecutor submitted that imprisonment was the appropriate option and that a suspended term of imprisonment should not be considered because of the seriousness of the offences.

14 In mitigation, defence counsel submitted to the magistrate that whilst the appellant had been convicted of the first assault of biting the victim's left arm, this had occurred in circumstances where all of those present had consumed alcohol. This was also said to have been a contributing factor to the second assault. It was submitted that the appellant had undertaken an alcohol management course whilst on remand in prison. This was said to indicate an awareness on his part that alcohol had paid a large part in the offending conduct.

15 The appellant had originally come from the Sudan and had migrated to Australia by way of Uganda in 2002. Between 2002 and 2007 he lived in Tasmania with his family. He moved to Western Australia in order to seek work in April 2007. It was submitted that after being released from prison on bail on 28 March 2011 the appellant had been busy looking for employment and had been offered a job as a boilermaker. His other future plans were to return to Uganda to visit a girl to whom he was engaged. He hoped to save up sufficient money to arrange for his fiancé to immigrate to Australia. It was submitted to the magistrate that the appellant's reluctance to engage in a communitybased order was because he wished to focus on getting good employment and to save up sufficient money so that he could start his life again.

16 As regards the time that the appellant had spent in custody, defence counsel said:

[I]f you were minded to impose a custodial sentence then I would ask that for (sic) any term of imprisonment to be suspended and any term of imprisonment that is ordered should take into account time previously served in custody being approximately one year and two weeks. And, your Honour, in the circumstances I would submit that a period of six months suspended for 12 months would be appropriate in [the appellant's] circumstances (ts 13 14).

17 The magistrate made the following remarks in sentencing:

In relation to all of these matters you have pleaded guilty to two matters of failing to report and the breach of protected bail condition and not guilty in relation to two unlawful assaults in circumstances of aggravation. I found you guilty of one and Magistrate Randazzo found you guilty of the other. I am going to sentence today, however, in relation to all matters and I have read the transcript that Magistrate Randazzo has supplied to me.

In relation to the pre-sentence report, it gives a lot of background, but it also states that you do not feel that you need any community supervision. There is no point putting you on any community supervision because there would be no benefit to you or the community if you do not comply with those orders. And it is clear that since you have been in prison for approximately 12 months and that is a very significant period of time to be in remand and you have undertaken, even though I do not have any proof of it, I accept through counsel that you have undertaken a number of courses whilst in custody and that perhaps alcohol is not the issue that it used to be.

It is clear from your Tasmanian record that alcohol was a significant factor in your offending in Tasmania, to the point that you were disqualified for three years for a driving under the influence charge in the Launceston Court of Petty Sessions and that is in 2007. Then you came to Western Australia and your first offending in Western Australia was obstruct police, no doubt alcohol related, and continued to offend until 2009, the DUI offence, with a reading of .247, which is a very significant alcohol reading to have and driving a motor vehicle and you did not hold a licence at the time.

...

Since you have been released from custody at the beginning of the year there has been no further offending, but it has only been a very short period of time. This is a very difficult sentencing matter simply because you should go to prison immediately, but you have served already, effectively, a 12 month term of imprisonment and that is not with parole, that is a full 12 months of being in custody. However, these do call for a period of imprisonment, but what I am going to do is suspend the period that I am going to impose upon you and I accept both the prosecution and the defence submission in relation to a fine for failing to report to the Community Offender Reporting Scheme.

I will go through, the head sentence is on my matter, 22824 of 2010. In relation to that there is 12 months' imprisonment suspended for a period of 24 months. On prosecution notice 17173 of 2010 there is a fine of $1000, $119.20 in costs. On 22823 there is three months' imprisonment suspended for 24 months. On 17074 there is six months' imprisonment suspended for 24 months. ...

... Now, all the suspended imprisonment orders will run together, however if they are breached under Section 80 of the Sentencing Act the court can make them cumulative or concurrent at that point of sentencing. So at this point in time they are all together, they will run together for the 24 months, but if you do breach the suspended imprisonment order they can be made cumulative or concurrent with one another at that time (ts 17 18).

18 The appellant submitted that the time spent in custody prior to trial, being approximately 12 months' imprisonment, was the equivalent of a sentence of 24 months' imprisonment with eligibility for parole. The appellant submitted that a comparative analysis of cases of assault occasioning bodily harm shows that the range is between six and 24 months' imprisonment. It was submitted that the offences in this case did not call for a sentence at the top end of that range. It was said that the sentences imposed, albeit that they were suspended, failed to adequately take into account the time spent in custody.

19 It is clear that the magistrate considered that the time spent in custody was a significant factor. It appears to be the factor that persuaded her to suspend the sentence. Nonetheless, a suspended sentence of imprisonment is still a sentence of imprisonment and the length of it must be determined having regard to all the particular circumstances. This includes the fact that the appellant had spent time in custody.

20 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Kirby J held that a two stage process was required when a suspended sentence was under consideration. First, the sentencing court would be required to conclude that a sentence of imprisonment and not some lesser sentence was called for. The second step involves a reconsideration of all of the relevant circumstances to see whether suspension of the term is justified: Dinsdale v The Queen [79], [85].

21 A sentence of suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend, be appropriate in all the circumstances: s 76 Sentencing Act 1995. This requires that consideration be given to whether immediate sentences of imprisonment of the same length as the suspended sentences imposed in this case would have been appropriate in all of the circumstances.

22 Had the magistrate decided that immediate sentences of imprisonment were appropriate, the total effective sentence could have been backdated to the extent that the time spent in custody was for the assault offences and for no other reason: s 87 of the Sentencing Act 1995 (WA). If the appellant had been remanded in custody for other reasons it would nevertheless have been open to the magistrate to take that time into account in a more general way: Narkle v Hamilton [2008] WASCA 31 [30] [31] (Steytler P, McLure and Buss JJA).

23 Where, however, a sentence of imprisonment is suspended there is no power to backdate it. In these circumstances it is open, and indeed appropriate, to take into account time spent in custody in determining the length of the suspended sentence and the period of suspension. Time spent in custody is also a factor that can be taken into account in deciding whether to suspend a term of imprisonment: Sunfly v The State of Western Australia [2009] WASCA 22 [24]. However, suspension alone may not adequately take into account time spent in custody.

24 The sentencing exercise here called for, first, consideration of what sentence would be commensurate with the seriousness of the offence: s 6 Sentencing Act. This requires that the statutory penalty, the circumstances of the commission of the offences and any mitigating or aggravating factors be taken into account. Some assistance can also be derived by considering similar cases.

25 The first assault offence was less serious and called for a lesser penalty. The second offence was more serious both in terms of the injuries inflicted and the fact that it occurred in circumstances where the appellant was prohibited by bail conditions from approaching the victim. Both offences were aggravated by the fact that they occurred in the context of a domestic relationship. Offences of this nature attract a maximum penalty of 7 years' imprisonment. The maximum summary conviction penalty is 3 years' imprisonment: s 317(1) Criminal Code. The latter is only a jurisdictional limit and it remains relevant to consider the statutory maximum penalty: Wiltshire v Mafi [2010] WASCA 111.

26 The offending in this case related to two separate incidents that were three months apart. For this reason it would be open to impose cumulative penalties: R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159. That is an important factor that needs to be taken into account in considering the significance of the time spent in custody. It is also relevant in comparing this case to others involving offences of the same type.

27 In Messiha v Plaucs [2012] WASC 63 I considered a number of cases involving offences of this type. Those cases included some where multiple incidents had attracted cumulative penalties. One of these was Forward v Bower [2007] WASC 205, a case that had some similarities to the present case. In that case, the appellant committed two aggravated assaults occasioning bodily harm in circumstances where he was the subject of a violence restraining order. In respect of the first offence, the appellant approached the victim at a hotel and after speaking to her bit her on the cheek. The second assault occurred a month later when the appellant approached the victim at another hotel, again breaching a violence restraining order and also protective bail conditions. On this occasion, the appellant grabbed the victim by the throat and forced her to the ground. The victim hit her head and bruised her elbow. The appellant was 58 at the time of the offending, had pleaded guilty and had no relevant prior convictions. He was sentenced to 18 months' imprisonment for the first assault and 12 months' imprisonment cumulative for the second assault. On appeal, the individual sentences were not disturbed but the order that they be served cumulatively was set aside and the sentences were ordered to be concurrent. This had the effect of reducing the total effective sentence from 30 to 18 months' imprisonment.

28 Paskov v Hull [2008] WASC 163 also involved pleas of guilty to two counts of aggravated assault occasioning bodily harm. In that case, the appellant and the victim had been in a de facto relationship for two months. The first assault occurred one evening after an argument which culminated in the victim packing her things to leave. The appellant pushed the victim into a window causing it to smash. He then dragged her outside, kicked her three times in the back and rib area and punched her in the head a number of times causing her to blackout. The second assault occurred some six months later. The appellant dropped the victim on the ground and kicked her repeatedly in the ribs before using his left ring finger to gouge her left eye. This left the victim with a bruised and swollen eye and a cut to the eyeball. The appellant was sentenced to 12 months' imprisonment for each of the assaults, those sentences to be served cumulatively. An appeal against sentence was dismissed.

29 In Morgan v Kazandzis [2010] WASC 377 the appellant was an Aboriginal man in his 40s living in a remote community. He had a criminal history which included offences of burglary and aggravated assault occasioning bodily harm but had not previously been sentenced to any term of imprisonment. He appealed convictions and sentences imposed for three assault offences following two separate hearings in 2009. The first two offences of aggravated assault occasioning bodily harm were committed on the appellant's much younger, pregnant de facto partner. Both the appellant and his partner were affected by alcohol at the time of each offence. Another conviction for aggravated common assault was committed on a different woman. The assaults on the de facto in that case involved slapping her in the face, kicking her in the head and stomping on her head while she was on the ground. The appellant also lay on top of her with his hands around her head and face and blocked her breathing. In the second offence, the victim sustained lacerations, bruising and some bleeding. The magistrate who sentenced the appellant in that case characterised the offences as vicious assaults which warranted immediate terms of imprisonment. The appellant was sentenced to 8 months' and 15 months' imprisonment respectively (to be served concurrently) for the first two offences and 9 months' imprisonment cumulative for the third offence, making a total effective sentence of 24 months' imprisonment. An appeal against sentence was partly allowed in respect of the third offence by ordering partial concurrency of the 9 month sentence of imprisonment on that offence for reasons of totality, the effect being to reduce the total effective sentence to one of 18 months' imprisonment.

30 On the basis of these other cases, it could not be said that the length of the sentences of imprisonment for the two offences in this case was beyond the range of sentences customarily imposed. A sentence of 6 months' imprisonment for the first offence and 12 months' imprisonment cumulative for the second offence would clearly have been open. It would also have been open to have backdated such sentences if they were to be immediately served. In those circumstances the appellant would have been eligible for parole immediately (assuming an order for eligibility was made).

31 However, in this case the appellant was no longer in custody when he came to be sentenced, having been bailed on 28 March 2011. That was no doubt a factor that the magistrate took into account. That left the magistrate with a difficult sentencing exercise. The offences were sufficiently serious to justify sentences of imprisonment but the magistrate needed to take into account the significant fact that the appellant had already served over 12 months in custody.

32 It is clear that her Honour sought to take into account the time spent in custody by ordering that the sentences she imposed be suspended. That was appropriate. What her Honour did not do, was take the time spent in custody into account in considering the first question; that is, the length of the sentences of imprisonment. This meant that the sentences imposed had the potential to be significantly more onerous in effect than if immediate sentences of the same length had been imposed and backdated. It is not apparent that that potential was considered by the magistrate.

33 In the event that there was a breach of the suspended sentences the appellant would fall to be dealt with under s 80 of the Sentencing Act. Section 80(3) provides that a court dealing with such a breach must make an order that the person serve the term or terms of imprisonment that were suspended unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed. Whilst it would be possible for the court dealing with any breach to make the two sentences concurrent in the event they were activated, this would still result in a sentence of 12 months' imprisonment being imposed. Any such sentence could not be backdated to take into account the time spent in custody because there is no provision to backdate a suspended sentence that is activated: see Lang v The State of Western Australia [2011] WASCA 153 [4] and Dragon v The State of Western Australia [2008] WASCA 252 [51] (Buss JA).

34 It is open under s 80(1)(b) for a court dealing with a breach of a suspended sentence to order that the person serve only part of the term of imprisonment that was suspended. However, that power is only available in the circumstances referred to in s 80(3). There have been cases in which, in the event of a breach, time spent in custody has been seen as a justification for exercising this power (or at least the similar power in respect of a conditional suspended imprisonment order under s 84F): see Lang and Salkilld v The State of Western Australia [2010] WASCA 22. However, in those cases that is because the time spent in custody has occurred since the suspended sentence was imposed and represents circumstances that have arisen or become known since that time. That exception could not be availed of in this case because the time spent in custody occurred prior to the imposition of the suspended sentence and was expressly taken into account by the magistrate.

35 The effect of this is that in the event of a breach the appellant would be liable to the activation of the suspended sentences under s 80. If those sentences were ordered to be served cumulatively this would amount to a sentence of 18 months' imprisonment. If they were ordered to be served concurrently the effective total sentence would be 12 months' imprisonment. Any such sentence would be one that could not be reduced to take into account the time already served in custody. The effect would be that the appellant would be liable to serve at least an additional 6 to 9 months in custody, even if he was granted parole. If not granted parole he could serve an additional 12 to 18 months' imprisonment.

36 The appellant's counsel sought to justify an argument that the outcome in this case was excessive on the basis that the time already spent in custody was equivalent to a 24 month sentence. That is only so on the assumption that the appellant would have been granted parole. That is an assumption that cannot necessarily be made. Nonetheless, it is appropriate to consider whether the length of the suspended sentences adequately took into account the time that the appellant had already served in custody.

37 If the suspended sentences imposed by the magistrate were breached and activated the effect would be that the appellant would serve a sentence that would not adequately take into account the time he had spent in custody. This would, in my view, fail to give effect to s 76 of the Sentencing Act. The clear purpose of that section is to ensure that no suspended sentence is imposed that is longer than would be appropriate for an immediate term in all of the circumstances. The fact that a term is suspended cannot justify imposing a term that, if it were immediate, would be too long. Sentences of 6 months' and 12 months' imprisonment would be too long if they did not take into account time already served. That is the outcome here. For these reasons I am of the view that the appeal must be allowed.

38 Were it not for the time spent in custody, the sentences imposed by the magistrate would have been entirely appropriate. Suspension alone was not sufficient to take into account that time. It did not deal with the possibility that a breach may occur and the sentences might be activated. For this reason some allowance in the length of the suspended sentences needed to be made.

39 Allowance for time spent in custody did not necessarily need to be an exercise in mathematical equivalence. There did, however, need to be some credit given for that time in setting the length of the terms imposed. In my view, that could be achieved by imposing sentences of 4 months' imprisonment on the first count and 8 months' imprisonment on the second count. It would remain open in the event of breach for those sentences to be made concurrent if that was considered appropriate.

40 Since I would allow this appeal on grounds 1, 2 and 3 it is strictly unnecessary to consider ground 4 which suggests that the period of suspension of 24 months was excessive. However, I note that in Evans v Vanderheide [2001] WASCA 352 Miller J said:

I am unaware of any authority on the question of the criteria to be adopted on considering the length of suspension to be imposed, but I would have thought the maximum period of 2 years to be reserved for serious cases, such as the offence of robbery, where a suspended sentence would be rare, or for cases where a long period for rehabilitation of the offender was necessary.

41 In that case the offender pleaded guilty to a charge of unlawful wounding. The offence had occurred in circumstances where the offender had fired a stone from a sling which struck the complainant below his right eye. The complainant required six stitches. It was accepted that the offending was considered serious due to the possibility that the complainant could have been permanently blinded. The sentence originally imposed in that case was 12 months' imprisonment suspended for 24 months. Miller J allowed the appeal and resentenced the offender by varying the length of the suspension period from 24 to 12 months.

42 In the present case there was ample justification in the presentence report for the magistrate to consider that an extended period of rehabilitation of the appellant was required. The fact that the appellant had shown little insight or interest in engaging with programmes may well have enhanced the need for an extended suspension period. However, in my view, a period of 12 months would have been adequate and that is the period that I intend to impose. The suspension period on the Bail Act offence will be amended to accord with that change.

1. The appeal is allowed.
2. The sentences in respect of charges PE 17074/10 and PE 22824/10 are set aside.
3. In lieu thereof the appellant is sentenced to 4 months' imprisonment on PE 17074/10 suspended for a period of 12 months and 8 months' imprisonment on PE 22824/10 suspended for a period of 12 months both suspension periods being from the date on which the sentences were originally imposed, 25 July 2011.
4. The sentence in respect of charge PE 22823/10 is varied by reducing the suspension period of 24 months to 12 months from 25 July 2011.