Bropho v Hall
[2015] WASC 50
•9 FEBRUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BROPHO -v- HALL [2015] WASC 50
CORAM: MITCHELL J
HEARD: 9 FEBRUARY 2015
DELIVERED : 9 FEBRUARY 2015
FILE NO/S: SJA 1004 of 2015
BETWEEN: SAMUEL THOMAS BROPHO
Appellant
AND
JULIE HALL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T WATT
File No :AL 2789 of 2014, AL 2857 of 2014
Catchwords:
Criminal law - Appeal against sentence - Manifest excess - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Intensive supervision order imposed
Category: B
Representation:
Counsel:
Appellant: Mr D Brunello
Respondent: Mr J D Berson
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2
Brown v Bluett [2013] WASC 189
Butler v The State of Western Australia [2012] WASCA 249
Eastough v The State of Western Australia (No 2) [2010] WASCA 88
Elliott v Blanchard [2007] WASC 289
Forkin v The State of Western Australia [2013] WASCA 51
Forward v Bower [2007] WASC 205
House v The King (1936) 55 CLR 499
Kjellgren v Cameron [2012] WASC 80
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Messiha v Plaucs [2012] WASC 63
Morgan v Kazandzis [2010] WASC 377
Paskov v Hull [2008] WASC 163
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v The State of Western Australia [2014] WASCA 238
Stokes v Auckland [2012] WASC 2
The State of Western Australia v Cheeseman [2011] WASCA 15
Wallam v Dent [2008] WASC 170
MITCHELL J:
(This judgment was delivered extemporaneously on 9 February 2015 and has been edited from the transcript.)
The appellant seeks leave to appeal against sentences imposed by the Magistrates Court at Albany on 23 October 2014 in respect of convictions of aggravated assault and breach of a protective bail condition. He also seeks an extension of time in which to appeal.
The appellant was sentenced to 15 months' imprisonment in respect of the aggravated assault and 2 months' imprisonment in respect of the breach of protective bail condition. The terms were ordered to be served cumulatively, so that total effective sentence was one of 17 months' imprisonment, backdated to commence on 1 September 2014.
For the following reasons I will grant the required leave, allow the appeal and substitute a 6 month intensive supervision order with a programme requirement.
Circumstances of the offending
The circumstances of the offending were described by the prosecutor before the magistrate in the following uncontroversial terms.
Between 7 pm on Saturday, 23 August 2014 and 2.00 am the following morning, the accused was at 5 Rogers Road, Spencer Park. The accused was celebrating a birthday party in the company of the victim and three friends. The accused and victim had been drinking alcohol along with the three friends. Sometime after 7 pm, an altercation occurred between the accused and victim. It became more aggressive as the evening went on and more alcohol was consumed.
The victim spoke to the accused about his behaviour towards one of her female friends. The accused took exception to the accusation and grabbed the victim by the T‑shirt, causing scratches to the side of her neck. They both continued to shout at one another. The accused punched the victim to the face, causing bruising and swelling to her left eye. The victim moved away from the accused. The accused followed the victim, and she felt the further blow to the side of her head, causing her pain. The victim heard her two children tell the accused to stop. It was at that point that the accused stopped hitting the victim.
… The victim attended Albany Health Campus on 25 August and was prescribed medication for the pain. The accused was arrested and conveyed to the police station and subsequently participated in an interview. He made admissions to being very intoxicated during the evening and believes he remembered assaulting the victim by grabbing her shirt and punching her to the face. The victim is 31 years of age and medium build, 165 centimetres tall.
Then racing to the breach of protective bail. It was 2.20 am on Tuesday, 26 August. The accused entered into a bail undertaking to appear at the Albany Magistrates Court at 8.30 am on the 18th day of September. Part of the conditions imposed on the accused were protective. The accused subsequently breached those bail conditions by attending 5 Rogers Road, Spencer Park, on Tuesday, 26 August at about 7 pm. The accused remained at that address until Saturday, 30 August 2014.
At 6.20 pm on Saturday, 30 August, the accused was located asleep in the front lounge room of that address by police and made full admissions. He said [he] didn't want to be away from [the victim] or the children.
Extension of time
An affidavit was sworn by an officer of the Aboriginal Legal Service in support of the application for leave to appeal. That affidavit described a number of administrative difficulties, fault for which could not be attributed to the appellant, which resulted in a delay in the institution of proceedings in this court until 16 January 2015.
The 28 day time limit for instituting an appeal must be taken seriously and every effort must be made to comply with it. The grant of an extension of time within which to appeal must not be taken for granted. Ultimately, the question is whether it is in the interests of justice to grant an extension where it is sought, and there may be cases where an extension of time is not granted even where there is merit in one of more of the grounds.[1]
[1] Eastough v The State of Western Australia (No 2) [2010] WASCA 88 [12] ‑ [14].
In the present case, given the relatively modest length of the delay, the reasons for delay and the merits of the proposed appeal, I am satisfied that the interests of justice require the grant of an extension of time within which to institute the appeal.
Leave to appeal
The appellant requires leave to appeal for each ground of appeal. Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding. Unless leave to appeal is granted on one or more grounds, the appeal must be taken to be dismissed.[2]
[2] Section 9 of the Criminal Appeals Act 2004 (WA).
The content of the statutory requirement that a ground have a reasonable prospect of succeeding was considered by the Court of Appeal in Samuels v The State of Western Australia.[3] In that case the court noted that, in a similar statutory context, it had been held that leave will ordinarily be granted to appeal against sentence where the appellant has made out a sufficiently arguable case that the sentence imposed was inappropriate in all the circumstances.[4] That is the approach which I adopt in the circumstances of the present case.
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
[4] Samuels [61].
Grounds 1 and 2 assert that the sentences respectively imposed for the aggravated assault and breach of protective bail condition offences were each manifestly excessive. Ground 3 asserts that the total effective sentence of 17 months' imprisonment infringes the first limb of the totality principle.
Having considered the parties' submissions I am satisfied that each of the grounds of appeal has a reasonable prospect of succeeding, and so would grant leave to appeal on each ground although, as will become apparent, it has proven unnecessary to determine the correctness of ground 2.
Ground 1: manifest excess and aggravated assault
As the appeal is against the exercise of a discretionary sentencing judgment, it is not sufficient for the appellant to convince me that I would have exercised the discretion in a manner different from the sentencing magistrate. Absent any express error of principle evident from the original sentencing reasons, it is ordinarily necessary to show that the sentence is so unreasonable or plainly unjust that there must have been some misapplication in principle in fixing the sentence.[5]
[5] House v The King (1936) 55 CLR 499, 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Barbaro v The Queen [2014] HCA 2 [26] ‑ [27].
An allegation of manifest excess is, therefore, an allegation of implied error. The orthodox approach in determining whether an individual sentence is unreasonable or plainly unjust requires an examination of the maximum sentence applicable to the offence, the seriousness of the offence on the scale of seriousness of offences of that type, the standards of sentencing customarily imposed and the personal circumstances of the offender.[6]
Maximum penalty
[6] Smith v The State of Western Australia [2014] WASCA 238 [32] ‑ [33].
The maximum penalty for the offence of aggravated common assault is imprisonment for 3 years and a fine of $36,000.[7]
Seriousness of offence
[7] Section 313(1)(a) of the Criminal Code.
In the present case there were two circumstances of aggravation alleged in the prosecution notice and accepted by the appellant. These were that the appellant was in a family or domestic relationship with the victim and that children were present when the offence was committed.[8]
[8] Section 221 of the Criminal Code.
The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted,[9] the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.
[9] The State of Western Australia v Cheeseman [2011] WASCA 15 [3].
This case illustrates the manner in which domestic violence can damage those other than the immediate victim and impose a considerable cost on the community. Counsel for the appellant points to the mitigating effect of the appellant's deprived upbringing which was itself marred by domestic violence fuelled by alcohol and drug abuse. Counsel for the appellant rightly relies on the principle that such childhood exposure to violence and drug abuse may compromise a person's ability to mature and learn from experience, and to avoid an impulsive recourse to violence, so that their moral culpability may be substantially reduced. However, those effects of violence may increase the importance of protecting the community from that kind of violence at the hand of a person whose moral culpability is so compromised.
The facts of this case illustrate a tragic cycle of violence with which the courts are depressingly familiar. A person exposed to domestic violence in his early life goes on as an adult to perpetrate the violence to which he was exposed as a child, damaging members of his community in the same way he was damaged as a child. For that reason, the fact that the appellant's offence was committed in the presence of children was a significant aggravating factor.
The courts are not in a position to solve all of the social problems which contribute to this cycle of violence. However, sentences imposed by courts should contribute, so far as they can within the constraints of the sentencing process, to attempts to break the cycle by giving proper weight to the need for community protection in the sentences which they impose.
The above considerations, together with those relating to the circumstances of the offence and the offender, lead me to accept the appellant's concession that it was open to the magistrate to conclude that a term of immediate imprisonment was the appropriate kind of penalty in all the circumstances of this case. That is so notwithstanding that the offence of common assault will often be appropriately dealt with by way of a fine or some other non‑custodial disposition in the Magistrates Court.
In that regard it is important to note is that the appellant was convicted of common, albeit aggravated, assault rather than assault occasioning bodily harm. The maximum penalty for assault occasioning bodily harm is significantly higher than for aggravated common assault, being imprisonment for 7 years when committed in circumstances of aggravation or racial aggravation and imprisonment for 5 years in other cases. In my view, assaults occasioning bodily harm are generally significantly more serious that assaults which do not have that consequence, and that difference is reflected in the maximum penalties for which Parliament has provided. If the appellant had been convicted of assault occasioning bodily harm on the present facts then the imposition of a custodial sentence would more clearly have been required.[10]
[10] Cheeseman.
A complicating factor in the present case is that, while the accepted facts are that bodily harm was caused to the victim by the assault in the present case, the appellant was only charged and convicted of the lesser offence of common assault. That very much limits the weight which can be given to the injuries which the victim sustained. In particular, the appellant must not be sentenced on the basis that he committed the more serious offence of assault occasioning bodily harm when he has only been convicted of common assault.
The appellant points to a number of mitigating factors which must be taken into account in assessing the relative seriousness of the offence. Counsel for the appellant notes that there was only one episode of offending; the conduct involved three harmful acts (a grab of the neck and two blows to the head); the appellant was not armed; the appellant did not verbally threaten the victim; the incident was not overly protracted or persistent; the appellant desisted when asked and there was no post‑offence conduct designed to intimidate the victim or suborn her silence.
In my view the case represents a relatively serious example of the offence of common assault because of the circumstances of aggravation to which I have referred. I would regard it as falling in the mid‑range of offences of common aggravated assault involving domestic violence.
Customary standard of sentencing
Neither counsel was able to identify any appellate decisions concerning the appropriate penalty in a case of aggravated common assault. Both pointed to cases dealing with appeals against sentences for aggravated assault occasioning bodily harm as providing some analogy.
In Messiha v Plaucs,[11] Hall J surveyed seven sentences imposed for aggravated assault occasioning bodily harm (in the context of a family and domestic relationship) in assessing a challenge to a total effective sentence of 18 months' imprisonment. As I have noted, the maximum penalty for aggravated assault occasioning bodily harm is 7 years' imprisonment.
[11] [2012] WASC 63 [44] ‑ [53].
Mr Messiha was convicted of five offences, including aggravated common assault (for which he received 4 months' imprisonment), threat to injure (for which he received 4 months' imprisonment) and three counts of aggravated assault occasioning bodily harm (for which he received cumulative sentences of 10 months', 4 months' and 4 months' imprisonment).
The conduct involved a sustained and multifaceted attack on his wife of 16 years in the family home and in the presence of their children. The aggravated common assault consisted of more than five punches to the head, face and body causing dizziness and pain. There was also a stab with a screwdriver to the shoulder inflicting a laceration and two bites to the arm whilst the victim was cowering on the floor, causing bruising and swelling requiring medical attention. Threats to injure were also uttered.
Mr Messiha was a mature man. He was unemployed. He was intoxicated on methylamphetamine. He had a number of previous convictions for offences of violence. He was said to be remorseful, but the extent of his contrition was obscured by attempts to minimise his conduct in a pre‑sentence interview.
The sentence appeals for aggravated assault occasioning bodily harm reviewed were Elliott v Blanchard (10 months' imprisonment);[12] Forward v Bower (18 months' imprisonment);[13] Wallam v Dent (10 months' imprisonment);[14] Paskov v Hull (12 months' imprisonment);[15] Morgan v Kazandzis (15 months' imprisonment)[16] and Stokes v Auckland (16 months' imprisonment).[17]
[12] [2007] WASC 289.
[13] [2007] WASC 205.
[14] [2008] WASC 170.
[15] [2008] WASC 163.
[16] [2010] WASC 377.
[17] [2012] WASC 2.
Hall J concluded from the review that the highest sentence imposed for a single incident of aggravated assault occasioning bodily harm, factually comparable to that of Mr Messiha's, was 16 months' imprisonment. On that basis, the total effective sentence of 18 months' imprisonment imposed on Mr Messiha was held to be disproportionate to the overall criminality.
A total effective sentence of 15 months' imprisonment was regarded as better reflecting the overall criminality. To achieve that result, Hall J set aside the sentence of 4 months' imprisonment imposed for the aggravated common assault and re‑sentenced the appellant to 1 month's imprisonment for that offence.
Messiha was cited with approval by McKechnie J in Kjellgren v Cameron,[18] where a sentence of 2 years' imprisonment was imposed on Mr Kjellgren for aggravated assault occasioning bodily harm. Whilst drunk and in breach of a police order, the appellant in that case repeatedly punched his de facto to the face causing bruising, swelling, a laceration requiring stitches and a broken nose. The appellant had a poor criminal record, including offences of violence. A plea of guilty was entered on the morning of the trial. A sentence of 15 months was substituted.
[18] [2012] WASC 80 [11].
In Brown v Bluett,[19] Allanson J allowed an appeal against a sentence of 27 months' imprisonment imposed for aggravated assault occasioning bodily harm, and concurrent sentences of 18 months' imprisonment imposed for three related offences of breach of a violence restraining order. The charged conduct involved three incidents spanning a period of 20 days. The first incident involved a breach of a violence restraining order with no violence. The second comprised the assault, in which the appellant struck the victim over the back of the head with a jaffle iron causing a laceration requiring medical glue and bruising and abrasions to her back and shoulder. The third incident, a breach of a violence restraining order, involved the offender pressuring the victim to drive him to Meekatharra and to withdraw her complaints. Mr Brown was middle aged. He had prior like convictions. He entered an early plea of guilty. Allanson J set aside the individual sentences on the basis they were manifestly excessive. Mr Brown was re‑sentenced to 12 months' imprisonment for the aggravated assault occasioning bodily harm, and concurrent sentences of 6 months' imprisonment for each offence of breach of the violence restraining order.
[19] [2013] WASC 189.
The above decisions illustrate that a sentence of 15 months' immediate imprisonment would stand at the upper range of sentences ordinarily imposed for the offence of aggravated assault occasioning bodily harm involving domestic or relationship violence. Cases in which such a sentence has been imposed for that offence have involved a significantly greater level of violence than was committed by the appellant in the present case.
I recognise that there is always scope for judicial discretion so that comparable cases can only ever be a guide to excess and will not themselves be determinative. Bearing that caution in mind, for the reasons I have given I accept the appellant's submission that the sentences imposed in the above cases demonstrate that the sentence of 15 months' imprisonment imposed for the factual circumstances of the appellant's offence is obviously out of step with sentencing patterns.
I note that none of the cases to which I have referred were cited to the magistrate during the course of the sentencing hearing before her. I do not say that as a criticism of counsel who appeared for the appellant at that sentencing hearing (who was not counsel appearing before me). She was briefed only shortly prior thereto and would not have had an opportunity to locate relevant cases. However, I am confident that, if the magistrate had been taken to the authorities to which I have been referred, she would have imposed a lower sentence in this case.
Appellant's personal circumstances
There were a number of mitigating factors to be found in the appellant's personal circumstances.
The appellant pleaded guilty to the offence at the first reasonable opportunity, and the magistrate correctly accepted that this warranted the maximum 25% reduction in the head sentence which would have been imposed, before mitigating factors were taken into account, under s 9AA of the Sentencing Act 1995 (WA). In addition, allowance was appropriately made for the remorse and early acceptance of responsibility reflected in the plea.[20]
[20] Forkin v The State of Western Australia [2013] WASCA 51 [21].
I have already noted the appellant's deprived background and the mitigatory effect of that circumstance. In addition, the appellant's efforts at rehabilitation while on remand indicated potential for rehabilitation.
I note that the appellant has a prior criminal record which includes a previous conviction for assault (committed against the same victim), 2 counts of breach of a protective bail condition and 6 counts of breach of bail conditions. The appellant's past record, while it shows the mitigatory effect of past good character to be absent, is not generally an aggravating factor. However, the fact that the assault is not the appellant's first assault on the same victim can be seen to be aggravating, as it was likely to increase the impact of the offence upon her.
Conclusion as to ground 1
In my view the appellant has made out ground 1, and demonstrated that the sentence of 15 months' immediate imprisonment would have been manifestly excessive even if the appellant had been convicted of the offence of aggravated assault occasioning bodily harm. That he was convicted only of aggravated common assault demands the conclusion that the sentence of 15 months' imprisonment exceeded by a substantial degree that which could properly have been imposed on a proper application of the relevant principles.
Ground 3
It follows from this conclusion that ground 3 is also made out. Both counsel accept that the first limb of the totality principle requires that the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally.[21]
[21] Roffey v The State of Western Australia [2007] WASCA 246 [24].
Once it is accepted that the length of the term of imprisonment for the aggravated assault was significantly in excess of any sentence which could properly be imposed on a proper understanding of the relevant principles, it must follow that the total effective sentence (of which the breach of bail sentence was only a small component) was disproportionate to the overall criminality involved in the offences.
I note that the respondent quite properly conceded that the appeal should be allowed on ground 1 and that, as a consequence, the total effective sentence infringed the first limb of the totality principle.
Resentencing
As the appellant has made out grounds of appeal in respect of both sentences imposed by the magistrate, I am required to exercise the sentencing discretion afresh.
I note that the appellant's efforts at rehabilitation while in custody have continued since the date of his sentence for these offences.
In forming my view as to the appropriate sentence for the aggravated common assault, I take account of the matters to which I have referred.
In considering the appropriate sentence for the offence of breach of the protective bail condition, I take account of the maximum penalty for that offence, being imprisonment for 3 years and a fine of $10,000.[22]
[22] Bail Act 1982 (WA), s 51(6).
The fact that the breach of bail concerned a protective bail condition, imposed to protect persons and the integrity of witnesses to a trial,[23] is a significant aggravating factor. In an appropriate case, such an offence may be the subject of a term of immediate imprisonment.[24]
[23] Under cl 2(2)(c) and (d) of pt D of sch 1 to the Bail Act.
[24] Butler v The State of Western Australia [2012] WASCA 249.
It is significant that the breach of the protective bail condition did not involve any violence or threat of violence or other intimidation. However, an important aspect of the offence of breaching a bail condition is the defiance of a court order, regardless of whether the breach is violent in nature. In the present case it was also an aggravating factor that the offence occurred on the same day as the protective bail condition was imposed and occurred while on bail for the offence of assaulting the person protected by the condition.
It is also important to note that, in resentencing the appellant, I am able to take account of the fact that he has now been in custody as a consequence of the offences which are the subject of this appeal since 1 September 2014, a period of just over 5 months. During that time he has continued his efforts at rehabilitation. When those matters are taken into account together with the other circumstances to which I have referred, it cannot now be said that a term of immediate imprisonment is the only option for the appellant in respect of either offence, even if that were the case at the time of his original sentencing. Taking into account that the appellant has spent that period in custody and made that progress during his time in custody, in my view the appropriate disposition in respect of both offences at this time is a 6 month intensive supervision order. The intensive supervision order should be subject to a programme requirement to enable the contributors to the appellant's offending behaviour to be addressed while he is in the community.
Ground 2
Having regard to the manner in which I have disposed of the appeal on grounds 1 and 3, it is unnecessary to deal with ground 2.
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