Ali v The State of Western Australia
[2013] WASCA 55
ALI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 55 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:169/2012 | 6 FEBRUARY 2013 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 1/03/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of 12 months' imprisonment suspended for 12 months | ||
| B | |||
| PDF Version |
| Parties: | MOHAMED AHMED ALI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Assault occasioning bodily harm Appellant taxi driver Passenger unable to pay fare Appellant lost his temper and assaulted passenger No substantial injuries No record of violence Appeal against sentence of 12 months' immediate imprisonment |
Legislation: | Nil |
Case References: | Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Chan v The Queen (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 The State of Western Australia v Cheeseman [2011] WASCA 15 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 55 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BRADDOCK DCJ
File No : IND 1619 of 2011
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Appellant taxi driver - Passenger unable to pay fare - Appellant lost his temper and assaulted passenger - No substantial injuries - No record of violence - Appeal against sentence of 12 months' immediate imprisonment
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Sentence of 12 months' imprisonment suspended for 12 months
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms A L Forrester
Solicitors:
Appellant : Abigail Rogers Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
The State of Western Australia v Cheeseman [2011] WASCA 15
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
(Page 3)
1 McLURE P: I agree with Newnes JA.
2 NEWNES JA: The appellant was convicted after trial in the District Court of one count of assault occasioning bodily harm and sentenced to 12 months' immediate imprisonment. The appellant appeals against the sentence on the ground that it was manifestly excessive. The appellant is on bail, pending the outcome of this appeal.
3 On 31 July 2012, Mazza JA granted leave to appeal.
Background
4 At the time of the offence, the appellant was working as a taxi driver. The appellant picked up the complainant from Burswood Casino in the early hours of 22 April 2011. The complainant asked to be taken to his home in Tuart Hill.
5 The complainant had no cash on him but intended to pay the taxi fare on his credit card. However, when he arrived outside his home and attempted to use the card the transaction was declined. The appellant tried several times to process the transaction on his credit card machine without success. He offered to charge the complainant a reduced amount but the credit card transaction for the reduced charge was also unsuccessful. The complainant then asked to be taken to a nearby branch of the Commonwealth Bank which had an ATM in order to withdraw cash to pay the fare. The appellant did so but the transaction at the ATM was also declined.
6 The complainant then returned to the taxi and offered his driving licence to the appellant by way of security, saying he would pay the fare the following day. The appellant became angry and attempted to seize the complainant's wallet. The complainant turned and began to walk away from the taxi.
7 The appellant lost his temper and got out of the taxi and pursued the complainant. He grabbed the complainant by the collar and pulled him, twisting and hitting him so he fell to the ground. The appellant punched the complainant while he was on the ground and stamped on his knee. The appellant then drove away in his taxi, taking the complainant's mobile phone with him.
8 The appellant was convicted after trial of one count of assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code
(Page 4)
- (WA). The appellant was found not guilty of a charge of aggravated robbery in relation to the mobile phone.
The sentencing remarks
9 The sentencing judge concluded that the offending was serious. Her Honour observed that the appellant's obligation as a taxi driver was to get the complainant home safely, but that he had taken the law into his own hands by assaulting the complainant when the complainant was unable to pay the fare. The assault had been frightening and violent, and quite disproportionate to any irritation caused by the complainant's behaviour. The appellant had inflicted injuries which were serious and painful, the complainant having suffered cuts and bruises, headaches for several days, aggravation of a previous knee injury, and ongoing psychological effects. Her Honour also noted that the appellant had left the complainant alone in the street without a phone in the early hours of the morning.
10 In relation to the appellant's personal circumstances, the sentencing judge noted that the appellant was 30 years of age. He had a wife and a 2-year-old child. The appellant had completed a computer programming degree in Egypt before migrating to Australia but his qualification was not recognised in Australia. The appellant had found work as a taxi driver. Her Honour observed that the appellant was unemployed after losing his licence to drive a taxi following the assault, and was now helping out in family shops. The appellant had convictions for traffic offences but no prior record of offences involving violence.
11 The sentencing judge accepted that the incident was out of character. Her Honour noted that the appellant had been finding difficulty making ends meet on his earnings and that he was under considerable stress as a result of previous incidents in which passengers had not paid the fare. On this occasion he had simply lost his temper. Her Honour concluded, however, that in light of the seriousness of the assault, the appellant's role at the time as a taxi driver, and the need to deter other taxi drivers from acting in a similar manner, the only appropriate term was one of immediate imprisonment.
12 The appellant was sentenced to 12 months' immediate imprisonment with eligibility for parole.
(Page 5)
Ground of appeal
13 The sole ground of appeal is that in the circumstances the sentence was manifestly excessive.
Disposition of the appeal
14 The relevant principles are well-established. An appellate court may not interfere with a sentence simply because it would have exercised the sentencing discretion differently from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene only if there is a material error of law or fact. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325. A ground of appeal asserting that a sentence was manifestly excessive relies on inferred error.
15 In determining whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
16 While it is necessary to have regard to the general range of sentences imposed for the offence in other cases in order to achieve consistency in sentencing, caution needs to be exercised in doing so because inevitably there will be differences in the circumstances of the offenders and the offences: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12].
17 The maximum sentence for the offence is 5 years' imprisonment. Limited assistance is to be derived from a consideration of sentences imposed in previous cases because the nature and circumstances of the offending in those cases differ greatly: see The State of Western Australia v Cheeseman [2011] WASCA 15, where Buss JA reviewed the sentences imposed for the offence in a large number of cases. I have, however, considered the cases mentioned by Buss JA in Cheeseman and the cases referred to by the parties in their written submissions. It is unnecessary to describe those cases.
18 In this case, having regard to the circumstances and nature of the assault, the offending, while serious, was not of the most serious kind. It
(Page 6)
- was not premeditated but occurred on the spur of the moment. At the time of the offence the appellant was under considerable stress. He was working long hours as a taxi driver for quite modest earnings. He had found it difficult to provide for his family from his earnings, a situation exacerbated by a number of previous occasions on which passengers had failed to pay the fare. In the circumstances, it is not difficult to understand how the appellant came to lose his temper on this occasion, having picked up the complainant from the casino in the early hours of the morning and taken him home only to find that he could not pay the fare, or even a reduced fare.
19 While the assault was violent, it was not prolonged and no weapon was involved. Stamping on the complainant's knee was, as her Honour described it, a 'gratuitous act of violence' by the appellant, but it was not suggested that the appellant was aware of the complainant's pre-existing knee injury. The other injuries suffered by the complainant were not of a substantial nature.
20 It is the case, as her Honour noted, that the appellant left the complainant in the street in the early hours of the morning without his mobile phone. While that was a relevant factor, it is clear from the trial transcript that the complainant was not left in an isolated area but in a built up urban area, in reasonably close proximity to an open service station.
21 The appellant has no prior record of offences involving violence. He is now unemployed, having lost his licence to drive a taxi following the assault.
22 In my view, in the circumstances a sentence of 12 months' immediate imprisonment fell outside a sound discretionary range. I would allow the appeal and set aside the sentence imposed by the sentencing judge.
23 It is then necessary to resentence the appellant. I would not interfere with the term of imprisonment her Honour imposed. I do not accept the submission put on behalf of the appellant that a term of imprisonment of 12 months was itself manifestly excessive. I consider the sentencing judge correctly concluded that a term of imprisonment was the only appropriate sentencing option. However, in the circumstances the suspension of the term of imprisonment was warranted. I would therefore sentence the appellant to 12 months' imprisonment suspended for a period of 12 months.
24 MAZZA JA: I agree with Newnes JA.
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