Bryant v Witts
[2018] WASC 194
•27 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BRYANT -v- WITTS [2018] WASC 194
CORAM: DERRICK J
HEARD: 25 JUNE 2018
DELIVERED : 27 JUNE 2018
FILE NO/S: SJA 1009 of 2018
BETWEEN: SHANNON DANIEL BRYANT
Appellant
AND
THOMAS WITTS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B C GLUESTEIN
File Number : PE 10152 of 2017, PE 10153 of 2017, PE 10154 of 2017, PE 10155 of 2017, PE 10156 of 2017, PE 10157 of 2017, PE 10158 of 2017
Catchwords:
Appeal against sentence - Sentence of immediate imprisonment imposed - Whether term imposed manifestly excessive - Whether wrong type of sentence imposed
Legislation:
Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Rules 2005 (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time within which to appeal granted
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P W Catalano |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Paul Catalano |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Forward v Bower [2007] WASC 205
Gillespie v The State of Western Australia [2016] WASCA 215
Juma v The State of Western Australia [2011] WASCA 54
Krijestorac v The State of Western Australia [2010] WASCA 35
Leckie v The State of Western Australia [2018] WASCA 91
Mason v The State of Western Australia [2018] WASCA 43
Morgan v Kazandis [2010] WASC 377; (2010) 206 A Crim R 235
Page v The State of Western Australia [2018] WASCA 76
Paskov v Hull [2008] WASC 163
Pureau v The State of Western Australia [2017] WASCA 115
Quigley v The State of Western Australia [2013] WASCA 9
Salkilld v The State of Western Australia [2017] WASCA 168
Samson v The State of Western Australia [2011] WASCA 173
Wiltshire v Mafi [2010] WASCA 111
Zinga v Johnson [2012] WASC 216
DERRICK J:
Introduction
The appellant seeks an extension of time within which to appeal and leave to appeal a total sentence of 22 months immediate imprisonment imposed by a magistrate on 22 November 2017 for two offences of aggravated unlawful assault contrary to s 313(1)(a) of the Criminal Code (WA) (Code) (charges PE 10152/17 and PE 10154/17), four offences of aggravated unlawful assault causing bodily harm contrary to s 317(1)(a) of the Code (charges PE 10153/17, PE 10155/17, PE 10156/17 and PE 10157/17), and one offence of cruelty to an animal causing it unnecessary harm contrary to s 19(1) and s 19(2)(e) of the Animal Welfare Act 2002 (WA) (charge PE 10158/17). The relevant aggravating circumstance for each of the unlawful assault and unlawful assault causing bodily harm offences was that the appellant was in a family and domestic relationship with the complainant.[1]
[1] Code, s 221(1)(a).
The pleaded grounds of appeal are as follows:
1.The total effective sentence of 22 months immediate imprisonment was manifestly excessive in all the circumstances and infringed the first limb of the totality principle.
2.There was an error of law in that given the circumstances of the offending and the appellant's antecedents, the sentence of imprisonment was not suspended.
On 17 April 2018 Archer J ordered that the application for an extension of time within which to appeal and the application for leave to appeal be heard at the same time as the appeal.
Leave to appeal on a ground of appeal cannot be granted unless the ground has a reasonable prospect of succeeding.[2] If leave to appeal is refused on each ground the appeal is taken to be dismissed.[3]
[2] Criminal Appeals Act 2004 (WA) (CAA), s 9(2).
[3] CAA, s 9(3).
The application for an extension of time
The application for an extension of time within which to appeal is not opposed by the respondent.
The last date for appealing the sentences imposed was 20 December 2017. The appeal notice was filed on 21 February 2018, that is, two months late.
The application for an extension of time is supported by an affidavit sworn by the appellant's counsel, Mr Paul Wayne Catalano, on 21 February 2018. Mr Catalano's affidavit reveals the following:
1.On or about 12 December 2017 the appellant applied from prison to Legal Aid (WA) (Legal Aid) for a grant of legal aid to obtain representation for an appeal;
2.On 3 January 2018 Mr Catalano was contacted by an officer from Legal Aid by telephone in relation to providing an opinion as to the merits of an appeal against sentence by the appellant;
3.On 4 January 2018 Mr Catalano received confirmation from Legal Aid of a grant of aid on behalf of the appellant to enable Mr Catalano to provide an opinion as to the merits of an appeal by the appellant against the sentences imposed on him;
4.On 9 January 2018 Mr Catalano obtained from Police Prosecutions in Perth the statement of material facts for the offences of which the appellant had been convicted as well as an up‑to‑date criminal record for the appellant;
5.On 9 January 2018 Mr Catalano sought from the Magistrates Court (by filing the appropriate form) a copy of the transcript of the appellant's sentencing hearing that took place on 22 November 2017 as well as certified copies of the relevant prosecution notices;
6.On 7 February 2018 the Magistrates Court provided the transcript of the 22 November 2017 hearing to Mr Catalano at which time it became apparent to Mr Catalano that the appellant's sentencing proceedings had actually commenced on 15 November 2017;
7.On 7 February 2018 Mr Catalano made a further request of the Magistrates Court for the certified copies of the prosecution notices;
8.On 12 February 2018 Mr Catalano submitted to Legal Aid his opinion as to the merits of an appeal by the appellant against the sentences imposed on him, and on the same day provided a copy of his opinion to the appellant;
9.Later on 12 February 2018 Mr Catalano received an email from Legal Aid extending the grant of legal aid to the filing of an appeal notice and conducting the appeal on behalf of the appellant;
10.On 14 February 2018 Mr Catalano received from the Magistrates Court a copy of a prosecution notice for the appellant which was not for one of the offences the subject of the appeal;
11.Later on 14 February 2018 Mr Catalano requested the Magistrates Court to provide to him the prosecution notices that he had originally requested on 9 January 2018;
12.On 15 February 2018 Mr Catalano received telephone instructions from the appellant in respect of filing the appeal notice;
13.On 16 February 2018 Mr Catalano received confirmation from Legal Aid of a grant of aid on behalf of the appellant in respect of an appeal against the sentences imposed on him;
14.On 19 February 2018 Mr Catalano again requested from the Magistrates Court (by filing the appropriate form) copies of the certified prosecution notices for the offences the subject of the appeal, as well as for a copy of the transcript of the proceedings that took place on 15 November 2017; and
15.As at the date of the swearing of his affidavit Mr Catalano was still awaiting the provision of copies of the certified prosecution notices.
The appellant submits that the delay in filing the appeal notice was not excessive and is adequately explained by both the time that it took for the appellant to obtain a grant of aid enabling the commencement of the appeal process, and the time that it took to obtain the necessary transcript from the Magistrates Court so as to enable the formulation of the grounds of appeal. The appellant also points out in this context that it was necessary to obtain the transcript of his sentencing hearings in order to comply with the requirement under r 65(1) of the Criminal Procedure Rules 2005 (WA) to file the transcript of the sentencing hearings with the appeal notice.
The delay in filing the appeal notice while not insignificant is not particularly excessive. Further I accept the appellant's submission that the delay is adequately explained. I therefore grant the extension of time within which to appeal.
The facts of the offences
The facts of the offences the subject of the appeal were read to the magistrate by the prosecutor during the hearing which took place before his Honour on 15 November 2017. The facts as read were not disputed by the appellant.
The complainant in all of the assault offences was the appellant's de facto partner.
The facts of the offences are as follows.
Charge PE 10152 of 2017 ‑ aggravated unlawful assault
At the time of the offence the appellant and the complainant had been in a de facto relationship for about seven months.
At about 9.30 pm on 8 November 2014 the complainant was driving her vehicle to the home address of her sister. The appellant was in the front passenger seat of the vehicle. The complainant's three children were sitting in the rear seat of the vehicle. The eldest of the three children was also the appellant's biological child and was the product of a very short union between the appellant and the complainant several years previously. The complainant was six months pregnant with the appellant's child.
The appellant was intoxicated and his behaviour was affecting the complainant's ability to drive safely. When the complainant asked the appellant to stop his behaviour the appellant became angry and punched the complainant to the left side of her face with a clenched fist causing the complainant to suffer immediate pain.
A short time later the complainant, the appellant and the children arrived at the complainant's sister's address. The appellant and the complainant got out of the vehicle and the appellant began to chase the complainant around the vehicle. The complainant's sister called the police. She managed to get the complainant and her children into the house to keep them away from the appellant.
The complainant's sister locked the appellant outside the house. The police subsequently arrived. The appellant was taken away from the house.
At the time the complainant did not advise the police about the assault.
Charge PE 10153 of 2017 - aggravated unlawful assault causing bodily harm
At about 8.00 am on 7 December 2015 the appellant was at his home address of 147 Boyare Avenue in Mirrabooka with the complainant. The complainant was sitting on the lounge. The appellant approached the complainant from behind and for no reason hit the complainant on the top of her head with a brush. The appellant hit the complainant with such force that the brush broke.
As a result of the blow struck by the appellant the complainant's 'head was split open'. The injury caused the complainant to bleed so badly that the appellant called an ambulance to assist the complainant. When the ambulance officers arrived the complainant told them that she had fallen and hit her head.
The complainant was taken to hospital. She received nine stitches to repair the injury to the top of her head.
Charge PE 10154 of 2017 - aggravated unlawful assault
At 10.00 am on 21 June 2016 the appellant was with the complainant in the complainant's vehicle. They were parked at the Coventry Markets in Morley. The complainant's youngest child was sitting in the back seat of the vehicle.
The appellant and the complainant began to argue because the appellant wanted to purchase a pet rat and the complainant did not think that this was a good idea. The appellant became angry. He punched the complainant to the face with a clenched fist. The complainant felt immediate pain to her face. The appellant and the complainant then got out of the vehicle and began to argue. Their arguing drew the attention of other people who were in the car park. The appellant and the complainant eventually got back into the vehicle and drove away. Two witnesses who saw the entire incident contacted the police. As a result the appellant and the complainant were spoken to at their Mirrabooka address. The complainant did not disclose the assault at this time.
Charge PE 10155 of 2017 - aggravated unlawful assault causing bodily harm
At 6.00 pm on 19 July 2016 the appellant was with the complainant and the complainant's four children at their home address. At this time the appellant hit the complainant on the top of her head with his mobile phone for no apparent reason. The appellant hit the complainant with enough force to cause a split in the same location on her head where she had previously received nine stitches. The blow caused a significant amount of bleeding. An ambulance attended. The complainant received ten stitches to the top of her head.
Charge PE 10156 of 2017 - aggravated unlawful assault causing bodily harm
On 1 August 2016 the appellant and the complainant were at their home address. The appellant and the complainant were arguing. The appellant pushed the complainant with enough force to cause her to fall backwards. As the complainant fell down she hit her left arm on a speaker that was on the floor. The complainant felt severe pain in her left arm although she did not seek immediate medical attention. Three days later the complainant was still experiencing pain in her arm so she attended hospital. It was found that the complainant had suffered a broken left ulna bone as a result of hitting her arm on the speaker at the time that the appellant pushed her.
Charge PE 10157 of 2017 - aggravated unlawful assault causing bodily harm
At 8.00 pm on 9 August 2016 the appellant, the complainant and the complainant's four children (the youngest of whom had recently been born to the appellant and the complainant) were at their home address. The appellant and the complainant were arguing. The complainant began to walk towards the front door of the house. The appellant became angry and threw a child's toy at the complainant. The toy hit the complainant in the face and split her lip open. The injury began to bleed. The appellant immediately conveyed the complainant to their local doctor's surgery. The complainant received six stitches to her lip to repair the injury.
Charge PE 10158 of 2017 - cruelty to an animal causing unnecessary harm
On an unknown date during the period 12 August 2016 to 17 August 2016 the appellant was at his home address. He was home with the complainant and the four children.
When the appellant woke up in the morning he identified that the family dog had defecated in the house. The dog was a small breed and weighed approximately 10 kg. The appellant became enraged and kicked the dog as hard as he could out of the house. The kick caused the dog to yelp in pain. The kick was delivered with such force that it paralysed the dog.
The appellant followed the dog out of the house. Once the appellant realised the significance of the injury that he had caused the dog he cradled the dog in his arms while it was paralysed and was struggling to breathe. The dog passed away while the appellant was still holding it.
The dog was buried in the backyard of the house.
Reporting of offences to the police
In November 2016 the appellant and the complainant separated. At this point the complainant felt safe enough to attend her local police station and make complaints about the occasions that she had been assaulted by the appellant during their relationship.
On 31 January 2017 the appellant was arrested. He participated in a record of interview.
The hearings before the magistrate
The appellant first appeared before the magistrate on 15 November 2017. The appellant was represented by counsel.
The magistrate had before him a pre‑sentence report dated 9 November 2017 and a court ordered psychological report dated 29 October 2017.
After the facts of the appellant's offences had been read to the magistrate the appellant's counsel made his plea in mitigation.
During his plea in mitigation counsel for all intents and purposes conceded that the only appropriate disposition was a term of imprisonment. However, counsel submitted that in all the circumstances any term of imprisonment could appropriately be suspended.[4]
[4] ts 7, 10, 11 and 12
In support of his submission that the appropriate sentence was a term of suspended imprisonment counsel placed considerable reliance on the contents of the psychological report. Counsel submitted that the psychological report revealed the following:
1.The appellant had a significant number of issues that he needed to address;[5]
2.It was likely that the appellant had a borderline personality disorder;[6]
3.The appellant was prepared to make whatever changes were necessary to address his issues;[7]
4.The appellant's substance use from an early age had prevented him from developing functional coping skills;[8] and
5.The appellant had been identified as being at high risk of reoffending.[9]
[5] ts 7 - 8.
[6] ts 8.
[7] ts 8.
[8] ts 9.
[9] ts 12.
During his plea in mitigation counsel informed the magistrate that between September 2016 and June 2017 the appellant had been 'attended to' by Armadale Health Services but that this was 'in the context of use of methamphetamine'.[10]
[10] ts 9.
Counsel drew the magistrate's attention to the fact that the writer of the pre‑sentence report had stated in her report that given that the appellant had acknowledged the need for intervention and had identified outstanding treatment needs he would benefit 'from [a period] of community rehabilitation to address his treatment needs and monitor his ongoing [risk to] the community'.[11]
[11] ts 9.
Counsel informed the magistrate that the appellant had previously been given a 'lifeline' by being accepted into the START court regime, but that he had been 'outed' from the regime 'because he failed to report as required for urinalysis testing'.[12]
[12] ts 10.
In response to the appellant's counsel's plea in mitigation the prosecutor submitted that given the seriousness of the offences the only appropriate disposition was a term of immediate imprisonment.[13]
[13] ts 13 – 14.
Having heard submissions from the appellant's counsel and the prosecutor, the magistrate informed the appellant that immediate imprisonment was 'clearly appropriate' for the offences but that he was going to defer sentencing for seven days to enable him to determine the appropriate length of sentence.[14] His Honour therefore adjourned the sentencing of the appellant to 22 November 2017. His Honour remanded the appellant in custody.
[14] ts 15.
On 22 November 2017 the appellant appeared before the magistrate for sentencing. The appellant was again represented by counsel.
At the outset of the hearing the prosecutor provided to the magistrate a copy of a document which he described as a 'victim impact statement'.[15] The prosecutor informed the magistrate that the statement had been prepared by a 'criminal compensation lawyer' who had been engaged by the complainant.[16] Presumably the magistrate received the statement pursuant to s 24(2) of the Sentencing Act 1995 (WA).
[15] ts 2.
[16] ts 2.
On being provided with the 'victim impact statement' the magistrate asked the appellant's counsel if he had anything further to put to him. Counsel accepted the magistrate's invitation. Counsel acknowledged the 'victim impact statement' and the effect that the appellant's offences had had on the complainant and her children.[17] Counsel then proceeded to inform the magistrate of difficulties that the appellant had experienced since being remanded in custody. Specifically, counsel informed the magistrate that the appellant had been denied access to his anti‑psychotic medication and his anti‑depressant medication, and that the appellant had been assaulted.[18] Counsel informed the magistrate that the appellant had had 'a horrendous experience' in custody.[19] Counsel took the opportunity to urge the magistrate to sentence the appellant to suspended imprisonment 'with orders to do some things'.[20]
[17] ts 2.
[18] ts 2 – 3.
[19] ts 3.
[20] ts 3.
Having heard the appellant's counsel's additional remarks and submission the magistrate proceeded to sentence the appellant.
In the course of his sentencing remarks the magistrate made express reference to the terms of s 6 of the Sentencing Act. His Honour identified as an aggravating factor the fact that the six assault offences had occurred over the period of time between 8 November 2014 and 9 August 2016.[21] His Honour stated that if he was sentencing the appellant for any one of the offences alone there would, given the appellant's limited record, be a non‑custodial sentence.[22] His Honour stated that he declined to impose suspended terms of imprisonment 'where these offences are so serious that only immediate imprisonment is appropriate, and for reasons both of personal and of general deterrence'.[23] His Honour stated that there was an important message to be sent to people such as the appellant and other people in the community that any form of violence committed against a person's partner cannot be tolerated.[24] His Honour quoted from a portion of the psychological report in which the psychologist had noted that the appellant had admitted past assaults on the complainant, sexual jealousy, use of weapons, credible threats of death, an escalation in his domestic violence and a 'minimisation/denial' of his domestic violence.[25] His Honour also referred to statements made in the pre‑sentence report to the effect that the appellant's comments to the writer of the report had indicated that the appellant held attitudes that support or condone violence in relationships.[26] His Honour noted that the appellant had been assessed by the psychologist to be at high risk of future violence towards any intimate partner.[27] His Honour recognised that the writer of the pre‑sentence report had suggested that the appellant would benefit from a period of 'community rehabilitation'.[28] However, his Honour expressed the view that he found this difficult to reconcile with the appellant's rejection of the opportunity that had previously been afforded to him by the START court by a 'failure to comply with its rules'.[29] His Honour made further reference to the content of the pre‑sentence report by stating that although the report referred to the appellant having pleaded guilty, the writer of the report had also stated that the appellant had minimised his actions, tended to shift blame to the victim, and displayed limited remorse or empathy towards the complainant.[30] His Honour made some brief remarks in relation to the appellant's animal cruelty offence. His Honour then concluded his sentencing remarks in the following terms:
[The animal cruelty offence] is a manifestation of his violent behaviour towards his former partner, and over an extended period of time, and the two reports that I've read are consistent with an attitude of lack of remorse, attempting to shift blame from himself, and a general struggle to acknowledge the impact Mr Bryant's violence has on his victim. Accordingly, as I've concluded, immediate terms of imprisonment are appropriate, and it will be as follows, with the head sentence being charge 10153, and the appropriate term on that charge is 12 months, with a 20% reduction for the guilty plea under s 9AA rounding that down to a term of nine months.
On charge 10155, a similar nine months, which is cumulative on the first nine months, and on the other two bodily harm charges, nine months each, concurrent. And on common assault charges, they will be six months each, concurrent. And on the charge under the Animal Welfare Act, noting the maximum to be 5 years, the term, taking into account my previous sentencing and so called totality, will be a further four months cumulative. Effectively, Mr Bryant 22 months imprisonment, backdated to 15 November 2017, with parole eligibility (ts 6 ‑ 7).
[21] ts 4.
[22] ts 4 - 5.
[23] ts 5.
[24] ts 5.
[25] ts 5.
[26] ts 5.
[27] ts 5.
[28] ts 5.
[29] ts 6.
[30] ts 6.
Accordingly, the sentences imposed by his Honour were as follows:
1.Charge PE 10152/2017 - aggravated unlawful assault - 6 months imprisonment;
2.Charge PE 10153/2017 - aggravated unlawful assault causing bodily harm - 9 months imprisonment;
3.Charge PE 10154/2017 - aggravated unlawful assault - 6 months imprisonment;
4.Charge PE 10155/2017 - aggravated unlawful assault causing bodily harm - 9 months imprisonment cumulative;
5.Charge PE 10156/2017 - aggravated unlawful assault causing bodily harm - 9 months imprisonment;
6.Charge PE 10157/2017 - aggravated unlawful assault causing bodily harm - 9 months imprisonment; and
7.Charge PE 10158/2017 - cruelty to an animal causing unnecessary harm - 4 months imprisonment cumulative.
Therefore the total sentence imposed by his Honour, as his Honour stated, was 22 months imprisonment.
The reports
The contents of the pre‑sentence report and the psychological report that were before his Honour during the hearings on 15 November 2017 and 22 November 2017 have to some extent been revealed by my above summary of what occurred during the hearings. I will, however, make some additional observations about the contents of the reports in order to give some further context to the above referred to statements made by the appellant's counsel and the magistrate in relation to the reports during the sentencing hearings.
In her report the psychologist described the appellant as an emotionally immature 26‑year‑old man. She noted that the appellant had recently been referred to the START court but that 'he was deemed unsuitable due to his erratic and unpredictable behaviour, high risk of violence and non‑compliance with urinalysis'. She stated that the appellant tended to exaggerate some of his history, minimise his violence, blame others and justify his behaviour. She stated that the appellant's childhood appeared impacted by parental conflict, inconsistent parenting, parental separation, Attention Deficit Hyperactivity Disorder (for which the appellant was on medication between the ages of 7 and 15), and victimisation experiences. She stated that the appellant rebelled and gravitated towards antisocial and other marginalised peers, seeking acceptance and belonging, and in this context began to engage in substance misuse. She stated that the appellant's early use of substances prevented his development of functional copings skills. She stated that the appellant has struggled on a long term basis with anger, emotional dysregulation, erratic and unpredictable behaviour, depression, anxiety and suicidal ideation. She stated that the appellant's substance misuse also appears to have impacted adversely on his mental health. She stated that a personality disorder, such as Borderline Personality Disorder, is highly likely. She identified the factors likely to have contributed to the appellant's offending to include a disrupted attachment history, chronic substance misuse, poor emotional regulation, poor stress resilience and coping skills, unresolved anger and resentment, a fear of rejection and abandonment, a threat sensitive and paranoid thinking style, negative and self‑defeating attitudes and behaviours, poor problem solving and conflict resolution skills, a propensity to use violence when in conflict with others, a strong tendency to blame others and to minimise or deny the extent of his problems, poor impulse control, poor judgment, emotional immaturity and self‑focus, and a lack of consequential thinking. She stated that the appellant has many treatment needs relating to domestic violence, anger, emotional regulation, stress resilience and coping skills, substance misuse, negative and self‑defeating attitudes and behaviour, interpersonal and relationship skills, problem solving and conflict resolution skills, impulse control, decision making and consequential thinking.
In relation to the appellant's substance misuse, the psychologist noted that the appellant had reported to her commencing cannabis use at the age of 13 and methylamphetamine use at the age of 19. She further noted that the appellant reported that he had continued to use cannabis on a daily basis, and that he had used methylampehtamine intravenously up until August 2016 at which time he had reduced his use of this drug.
As to the appellant's attitude to his offending, the psychologist stated that the appellant, when providing information, tended to blame the complainant, minimise his violence and justify his actions. She stated that the appellant asserted that the complainant was sexually jealous, insecure, constantly 'nagging' him and starting arguments. She stated that the appellant also appeared to excuse his behaviour because he was either under the influence of, or withdrawing from, substances and was not using prescribed medication consistently. She stated that although the appellant reported regretting his actions 'his regret appeared predominantly related to the consequences for himself'.
In her report the writer of the pre‑sentence report stated that although the appellant attempted to take some responsibility for his actions he tended to project blame towards the victim and displayed limited empathy. She stated that according to the appellant his relationship with the appellant was marred by mutual substance misuse. She stated that the appellant admitted that his offences were fuelled by his alcohol and methylamphetamine use. She stated that in relation to the animal cruelty offence the appellant displayed limited empathy or remorse and attempted to justify his actions. She stated that given that the appellant 'acknowledged the need for intervention and his identified outstanding treatment needs' her assessment was that the appellant would benefit from a period of community rehabilitation to address his treatment needs and monitor his ongoing risk to the community.
The appellant's pleas of guilty
The appellant was charged with all of the offences on 16 February 2017.
The appellant first appeared in the Magistrates Court in relation to the charges on 2 March 2017. He then appeared in relation to the charges on a number of occasions throughout 2017. During this period he was referred to the START court, but as already indicated, he was deemed unsuitable for the START court regime due to his behaviour, his risk of violence and his failure to comply with urinalysis requirements.
Ultimately, the appellant pleaded guilty to all of the charges on 27 September 2017 (although an earlier indication that guilty pleas would be entered had been given by the appellant in July 2017 in order to enable him to enter the START court regime). On 27 September 2017 the appellant was remanded to 15 November 2017 for sentencing.
The grounds of appeal
I turn now to deal with the individual grounds of appeal.
Ground 1
The appellant does not by this ground of appeal contend that the magistrate made any express error. Nor does the appellant contend that any of the individual sentences imposed for the offences was manifestly excessive. Rather, the appellant's contention is that the total effective sentence of 22 months imprisonment demonstrated implied error in that it infringed the first limb of the totality principle and was therefore manifestly excessive.
Applicable general principles
The general principles to be applied by an appellate court in determining if a total effective sentence imposed infringes the totality principle are well established. They can be stated as follows.
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied error. Where, as in this case, the allegation is one of implied error, namely that the total sentence imposed was manifestly excessive, the court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. Rather, the appeal court must be satisfied that the total sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[31]
[31] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36]; Leckie v The State of Western Australia [2018] WASCA 91 [26].
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[32]
Application of general principles to the appellant's case
[32] Salkilld v The State of Western Australia [48]; Page v The State of Western Australia [36]; Leckie v The State of Western Australia [26].
Against the background of the above statements of principle, I turn to deal with the substantive allegation the subject of the ground of appeal.
Overall criminality
The maximum penalty for each of the appellant's aggravated unlawful assault offences was 3 years imprisonment and a fine of $36,000. The maximum penalty that could be imposed by the magistrate for each of the aggravated unlawful assault causing bodily harm offences was also 3 years imprisonment and a fine of $36,000. The maximum penalty that could be imposed for the animal cruelty offence was 5 years imprisonment and a fine of $50,000.
The maximum penalties that were able to be imposed by the magistrate for each of the aggravated unlawful assault causing bodily harm offences were the maximum summary conviction penalties. However, the maximum summary conviction penalties were only jurisdictional limits and it remains relevant to consider the statutory maximum penalty for each of the aggravated unlawful assault causing bodily harm offences.[33] The statutory maximum penalty for these offences was 7 years imprisonment.
[33] Wiltshire v Mafi [2010] WASCA 111 [24] ‑ [33].
Each of the offences committed by the appellant was serious.
As to the first of the offences (charge PE 10152/2017) the appellant punched the complainant to the side of her face while she was driving her car. To punch the complainant to the side of her face while she was driving and unable to defend herself or take evasive action was a nasty violent act. It was also a dangerous act given that it could have affected the ability of the complainant to retain control of her car. In addition, the fact that the blow was struck while the complainant was six months pregnant with the appellant's child and in the presence of the complaint's three children who were in the rear seat of the car further aggravated the seriousness of the offence.
The second of the offences (charge PE 10153/2017) was comprised of a particularly gratuitous act of significant violence. To approach the complainant from behind and then strike her without any provocation whatsoever to the top of her head with a brush with sufficient force to break the brush and while she was completely unable to defend herself or take evasive action was reprehensible conduct. In addition, the injury to the complainant's scalp which constituted the bodily harm for the purpose of the charge was not insignificant requiring as it did the insertion of nine stitches.
The third of the appellant's offences (charge PE 10154/2017), which was comprised of the appellant punching the complainant to her face with a clenched fist, was another act of significant violence inflicted on a vulnerable female. Further, the seriousness of the appellant's conduct was aggravated by the fact that it was carried out while the complainant's youngest child was present in the vehicle.
The fourth offence (charge PE 10155/2017), which again involved the appellant striking the complainant on the head with an object, in this case a mobile phone, for no apparent reason, was another serious act of gratuitous violence. Further, the injury constituting the bodily harm, in this instance a wound to the region of the complainant's head which had been injured by the earlier offence involving the use of the brush, was not insignificant requiring as it did the insertion of 10 stitches.
The fifth offence (charge PE 10156/2017) involved a forceful push as opposed to the striking of a blow. Nonetheless, the appellant's conduct had serious consequences for the complainant, namely a broken bone in her arm.
The sixth of the assault offences (charge PE 10157/2017) was again serious involving as it did the throwing of an object, obviously with some force, at the complainant. In addition, and once again, the injury constituting the bodily harm, namely a lacerated lip which required the insertion of six stitches, was not insignificant.
Thus each of the assault offences was serious in its own right. In my view none of the offences can be said to fall towards the bottom end of the range of seriousness for offences of their type. Rather, and as the appellant concedes, each of the offences fell towards the middle of the range of seriousness of offences of their type.
Looking at the assault offences globally, it is apparent that over an extended period of time the appellant engaged in a serious course of criminal conduct comprised of subjecting the vulnerable complainant to a number of significant acts of domestic violence. The fact that the offences were committed in a domestic setting increases the seriousness of what the appellant did.[34]
[34] Gillespie v The State of Western Australia [2016] WASCA 216 [48]; Pureau v The State of Western Australia [2017] WASCA 115 [75]
Little needs to be said about the seriousness of the animal cruelty offence. The act constituting the offence was brutal and senseless. The offence, resulting as it did in the suffering and eventual death of the dog, was a relatively serious example of its type. In my view the fact that the appellant apparently cradled the dog in his arms while it passed away does little if anything to mitigate the seriousness of the conduct.
Pleas of guilty
The appellant's pleas of guilty were a mitigatory factor. However, the mitigatory value of the pleas was given effect to by the magistrate discounting the sentences imposed by 20% pursuant to s 9AA of the Sentencing Act. I note in this regard that although the magistrate expressly stated that he had discounted by 20% the sentence of 12 months imprisonment that he would otherwise have imposed for the aggravated assault causing bodily harm offence the subject of charge PE 10153/2017 to take account of the appellant's plea of guilty, his Honour did not make any similar statement in respect of any of the other offences. However, this is not an issue that needs to be further addressed given that the appellant does not contend as part of his grounds of appeal either that the magistrate failed to give a discount under s 9AA of the Sentencing Act for each of the sentences imposed, or that any of the individual sentences imposed were excessive in length.
Circumstances referable to the appellant personally
The appellant was born on 4 June 1991. He was therefore 23 when he committed the first of the offences and 25 when he committed the remainder of the offences. He was therefore just still at a point in his life at the time of committing the offences where his age carried with it some very limited mitigatory value.[35]
[35] Juma v The State of Western Australia [2011] WASCA 54 [44]; Quigley v The State of Western Australia [2013] WASCA 9 [20] ‑ [25]
The appellant's record of criminal convictions prior to being convicted of the offences the subject of the appeal was in relative terms minor. As a juvenile he had been convicted of two relatively minor offences which were of no relevance to the exercise of the magistrate's sentencing discretion. As an adult the appellant had been convicted of a number of driving related offences, an offence of obstructing a police officer, an offence of possessing cannabis and an offence of disorderly behaviour in public. The appellant was fined for all of these offences.
The nature and extent of the appellant's adult criminal record was such that he could not properly be described as a first offender at the time that he was sentenced by the magistrate. However, the appellant's record clearly carried with it some relatively significant mitigatory value.
It is the case, as was clear from the reports, that the appellant did at the time of committing the offences and at the time of sentencing have some treatable mental health issues, specifically depression and anxiety, which had been exacerbated by his long term substance use. However, there was nothing in the material before the magistrate which supported a finding that there was a material causal link between the appellant's mental health issues and his offending such as to reduce the appellant's culpability or moral blameworthiness for the offending.[36] To the contrary, it is tolerably clear from the reports that the primary if not sole cause of the appellant's offending was his use of alcohol and methylamphetamine. I note further in this context that the appellant's mental health issues were not one of the factors that the psychologist specifically identified as having been a likely contributor to the appellant's commission of the offences.
[36] Krijestorac v The State of Western Australia [2010] WASCA 35; Samson v The State of Western Australia [2011] WASCA 173 [55] ‑ [57]; Mason v The State of Western Australia [2018] WASCA 43 [57] ‑ [63].
The fact that the appellant's mental health issues did not operate so as to reduce his moral culpability for committing the offences did not make them completely irrelevant to the sentencing exercise. The appellant's mental health issues were relevant to matters such as his prospects of rehabilitation, his treatment needs and the question of whether any sentence of imprisonment would weigh more heavily on him than a person of normal health.[37] However, it must be said, in my view, that in all the circumstances of the appellant's case his mental health issues did not operate as a mitigatory factor of any real significance. The appellant had already been assessed for inclusion in the START court regime but had, for the reasons identified by the psychologist, been deemed unsuitable to participate in the processes of that court. Moreover, despite the appellant's counsel's complaints made to the magistrate during the hearing on 22 November 2017 to the effect that the appellant had, during the week that he had spent in custody, been denied access to his medication, there was nothing in the material before the magistrate to suggest that the appellant's mental health could not be adequately managed in the longer term in the prison setting. Presumably this is precisely what occurred during the period of approximately four months that the appellant spent in custody prior to being released on bail pending the determination of his appeal.
[37] Mason v The State of Western Australia [61].
The fact that the appellant may well have had a borderline personality disorder was not a mitigatory factor, although the existence of this condition may have provided part of the explanation for the appellant's conduct in committing the offences.
Absence of acceptance of responsibility and remorse
Although the appellant pleaded guilty to the offences, it is clear from the reports, as the magistrate in effect found, that the appellant had not fully accepted responsibility for the offences and was not genuinely remorseful. The absence of these factors did not aggravate the seriousness of the appellant's conduct in committing the offences. However, their absence did mean that the appellant did not attract the mitigatory benefit which accompanies a full acceptance of responsibility and genuine remorse.
Risk of reoffending
Finally, the appellant had, as the magistrate noted, been assessed by the psychologist as being at high risk of engaging in violence towards future intimate partners. The appellant's high risk of future offending in this way meant that the sentencing considerations of personal deterrence and, albeit to a lesser extent, protection of the public were of relevance when it came to determining the total effective sentence to be imposed on the appellant.
Other relevant sentencing factors
There was, as the magistrate recognised, a need to impose a sentence that was capable of acting as a general deterrent.[38]
Total effective sentences in comparable cases
[38] Pureau v The State of Western Australia [76].
It must be said that it is difficult to find any cases that are directly comparable with the present case. This is entirely unsurprising given that every domestic violence type case has its own peculiar facts and circumstances. However, to the extent that any form of comparison can be undertaken, it does seem to me, keeping in mind that the magistrate was subject to the jurisdictional limit imposed by the summary conviction maximum penalties, that the total sentence imposed by the magistrate for the assault offences was broadly consistent with total sentences imposed in other cases involving multiple acts of domestic violence.[39]
Decision
[39] Forward v Bower [2007] WASC 205; Paskov v Hull [2008] WASC 163; Morgan v Kazandis [2010] WASC 377; (2010) 206 A Crim R 235; Zinga v Johnson [2012] WASC 216; Gillespie v The State of Western Australia [2016] WASCA 215.
In my opinion, having regard to the overall criminality of the appellant in committing all of the offences, the appellant's personal circumstances including his age and relatively good criminal record, the appellant's pleas of guilty, the appellant's failure to fully accept responsibility for his offending, the appellant's failure to demonstrate genuine remorse, the appellant's risk of reoffending, the need to give effect to the sentencing considerations of personal and general deterrence, and the total effective sentences imposed in comparable cases, a total sentence of 22 months imprisonment cannot be said to be so unreasonable or unjust as to manifest error. In my view it was open to the magistrate in the exercise of his sentencing discretion to arrive at the sentence of 22 months imprisonment. In my view the total sentence of 22 months imprisonment did not fall outside a sound range of the magistrate's sentencing discretion.
For the reasons I have stated I would refuse leave to appeal on this ground.
Ground 2
By this ground of appeal the appellant contends that the appropriate sentence for the offences given the circumstances of the offending and the appellant's antecedents is a suspended term of imprisonment. Again, the appellant does not contend by the ground of appeal that the magistrate in deciding to impose immediate terms of imprisonment made an express error. Rather, the appellant's contention is that error is to be inferred from the imposition of the sentences of immediate imprisonment.
The principles to be applied by an appellate court in a case where the allegation is, as in this ground, that the wrong type of sentence was imposed are well‑established. They are in substance the same as those that I have stated in dealing with ground 1. Thus, where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appeal court must be satisfied that the type of sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[40] To put the matter another way, the question for the appeal court is whether it was open to the sentencing court to find that the less serious sentencing option, in this case suspended imprisonment, was not appropriate.[41]
[40] Salkilld v The State of Western Australia [48]; Page v The State of Western Australia [36].
[41] Mason v The State of Western Australia [55] ‑ [56]; Sentencing Act, s 39(3).
In order to determine whether it was open to the sentencing court to find that the less serious sentencing option was not an appropriate disposition for an individual offence or multiple offences, the offence or offences should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[42]
[42] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] ‑ [70]; Page v The State of Western Australia [36].
The appellant has pointed to two cases as authority for the proposition that even in a case involving serious domestic violence, a sentence of suspended imprisonment is available when there are prospects of rehabilitation. The two cases are Harrison v Hunter and Zinga v Johnson.
The general proposition advanced by the appellant in reliance on Harrison v Hunter and Zinga v Johnson is difficult to quarrel with and can be accepted. However, the facts and circumstances of both cases were very different to the facts and circumstances of the appellant's case. Both cases involved an overall less serious course of conduct to that engaged in by the appellant, and in Zinga v Johnson the appellant had spent a significant amount of time (12 months) in custody prior to being sentenced. In any event, the fact that examples can be found of domestic violence type cases in which a non‑custodial sentence was imposed does not demonstrate that a sentence of immediate imprisonment in the present case was outside the range of a sound exercise of the sentencing discretion. This point is demonstrated by the fact that in a number of the domestic violence type cases referred to in Zinga v Johnson sentences of immediate imprisonment were imposed and upheld on appeal.
I accept, as is apparent from what I have already said in dealing with ground 1, that there were a number of mitigatory factors in the appellant's case. The mitigatory factors consisted in the main of the following:
1.The appellant's age;
2.The appellant's relatively good record and the fact that he had not previously been sentenced to a term of immediate imprisonment or a community based disposition;
3.The appellant's pleas of guilty;
4.The assessment by the writer of the pre‑sentence report that the appellant was a suitable candidate for supervision in the community; and
6.The fact that the appellant had spent one week in custody prior to being sentenced by the magistrate.
Against the above factors, however, must be weighed the seriousness of the appellant's individual offences, the seriousness of the appellant's conduct viewed overall, the appellant's attitude to his offending, the risk of the appellant reoffending, and the need to impose a sentence that was capable of acting as both a personal and a general deterrent. Taking all of these factors into account it was, in my opinion, open for the magistrate to conclude that the less serious sentencing option of suspending imprisonment was not appropriate (or in other words that the only appropriate disposition was a term of immediate imprisonment). In my view, even making full allowance for the mitigatory factors to which I have referred, the imposition of immediate terms of imprisonment did not fall outside a sound exercise of the magistrate's sentencing discretion. It follows that I would refuse leave to appeal on this ground.
Conclusion
For the reasons I have stated I dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK
27 JUNE 2018
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