BYKERK v Director of Public Prosecutions (WA) - [2022] WASC 451

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BYKERK -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 451
CORAM:   MCGRATH J
HEARD:   16 DECEMBER 2022
DELIVERED          :   21 DECEMBER 2022
FILE NO/S:   SJA 1059 of 2022
BETWEEN:   SACHA ASCHWIN SILVAIN BYKERK
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   BU 1390 of 2022

Catchwords:

Criminal law - Assault occasioning bodily harm in circumstances of aggravation - Whether sentence manifestly excessive - Breach of s 86 of Sentencing Act 1995 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), pt 2
Sentencing Act 1995 (WA), s 9AA, s 37, s 86

Result:

Leave to appeal is granted on ground one
Leave to appeal is refused on grounds two and three
Appeal is allowed on ground one
The sentence of six months' imprisonment conditionally suspended for 12 months is set aside an in lieu thereof an intensive supervision order for a period of 12 months is imposed

Representation:

Counsel:

Appellant	:	Mr D S Hunter
Respondent	:	Mr R P Arndt

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Dreja v Sloan [2011] WASC 245
Duncan v The State of Western Australia [2018] WASCA 154
Elliot v Blanchard [2007] WASC 289
Johnson v Vander Sanden [2021] WASCA 27
Kabambi v The State of Western Australia [2019] WASCA 44
McComish v Harman [2016] WASC 324
Medanovic v The State of Western Australia [2016] WASC 237
Pedrochi v Brown [2021] WASC 81
Roberts v The State of Western Australia [2014] WASCA 239
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Cheesman [2011] WASCA 15
The State of Western Australia v Wallam [2008] WASCA 117
Traegar v Pirse De Albuquerque (1997) 18 WAR 432
Veen v The Queen [No 2] (1988) 164 CLR 465
Wallam v Dent [2008] WASC 170

MCGRATH J:

The appellant was convicted, upon his own plea of guilty to one offence of assault occasioning bodily harm in circumstances of aggravation contrary to s 317(1)(B) of the Criminal Code (WA). The learned Magistrate imposed a term of imprisonment of six months, conditionally suspended for 12 months.
The appellant appeals the sentence on multiple grounds. First, the appellant contends that the learned Magistrate erred in law by imposing a term of six months' conditionally suspended imprisonment, given that s 86 of the Sentencing Act1995 (WA) prohibits a term of imprisonment of six months' imprisonment or less being imposed. Second, the sentence was manifestly excessive in that the learned Magistrate imposed the wrong type of sentence, namely a conditionally suspended term of imprisonment. Third, the learned Magistrate erred by regarding the appellant's prior criminal history as an aggravating factor.
The respondent concedes that a term of imprisonment of six months, conditionally suspended, was not lawfully open given the prohibition under s 86 of the Sentencing Act. However, the respondent contends that the learned Magistrate did not otherwise err and that a term of imprisonment, conditionally suspended, was reasonably open to the learned Magistrate and that therefore, whilst the appeal should be allowed, the term of imprisonment of six months should be set aside and in lieu thereof a term of imprisonment of six months one day should be imposed. Alternatively, I should order that the matter be returned to the learned Magistrate to correct sentence under s 37 of the Sentencing Act. Whilst I accept the concession of the respondent that the appeal must be allowed, I do not accept the respondent's submission that I should arbitrarily increase a successful appellant's term of imprisonment by one day to circumvent s 86 of the Sentencing Act nor do I accept that the matter should be returned to the learned Magistrate to correct the sentence.
For the following reasons, I have determined that the appeal must be allowed and that the term of six months imprisonment conditionally suspended must be set aside and in lieu thereof an intensive supervision order of 12 months duration be imposed.

The Magistrates Court proceedings

On 7 July 2022, the matter was heard before the learned Magistrate. The facts, which were accepted by the appellant, are that on 1 May 2022 the appellant, who had consumed methylamphetamine, was at his residence with his partner of three years. The appellant is a 52‑year‑old male being 180cm tall and of medium build whilst the victim is a 58‑year‑old female being 165 cm tall and of solid build.
An argument commenced between the appellant and his partner. The appellant pushed the victim and slapped her once to the head during the argument. The victim sustained a small, two cm cut to her forehead and a scratch to her right forearm. The victim was required to leave the address to stay with the appellant's parents.[1]
[1] ts 3 (07/07/2022).
The appellant was arrested by the police and was interviewed. During the interview, the appellant stated that he had a 'heated verbal argument' with his partner and that he 'couldn't remember what had happened'.[2]
[2] ts 3 (07/07/2022).
In mitigation, counsel for the appellant submitted that the plea of guilty was made at a very early stage and that the appellant had accepted responsibility for his offending. Counsel observed that the appellant, who was employed full-time as a bricklayer, has health issues including borderline schizophrenia for which he receives medical treatment. Whilst the appellant has a criminal record that includes assault convictions, the previous offending did not occur in a domestic relationship. Counsel submitted that the appellant has previously satisfactorily completed community based orders.[3]
[3] ts 4 (07/07/2022).
The prosecution submitted that the appellant was last convicted of an 'assault type incident' in 2014 and that there had been no previous convictions for assault in a domestic relationship. The prosecutor stated that the 'prosecution would support that an order is made in relation to - just to assist the accused in moving forward and to try and not commit this type of offence again'.[4]
[4] ts 5 (07/07/2022).
In her sentencing remarks, her Honour accepted that the assault was spontaneous rather than pre-mediated. Her Honour granted the appellant a 25% discount pursuant to s 9AA of the Sentencing Act. The learned Magistrate observed that the appellant's last conviction for an offence of violence was in 2014.
The learned Magistrate stated that the sentence should reflect the need for general deterrence because violence against women is most serious.[5] The learned Magistrate found that an aggravating factor was that the offence was committed in a familial relationship and that his partner sustained an injury.[6] Her Honour accepted that the offence was not premeditated but committed when the appellant was intoxicated with methylamphetamine.
[5] ts 3 (07/07/2022) (sentencing remarks).
[6] ts 2 (07/07/2022) (sentencing remarks).
Her Honour observed that the author of the pre-sentence report identified ongoing treatment needs but stated that 'it sounds' like the appellant was 'turning around' after his last conviction for violence in 2014.
The learned Magistrate accepted that the appellant was remorseful.
The learned Magistrate observed that the appellant suffered from borderline schizophrenia and that he was being treated and that therefore he was not a good vehicle for general or specific deterrence.[7] Accordingly, the learned Magistrate was of the view that '[g]eneral deterrence falls to a lower level' because of the appellant's personal circumstances but there was still a need to demonstrate the community's condemnation for the offence.[8]
[7] ts 3 (07/07/2022) (sentencing remarks).
[8] ts 3 (07/07/2022) (sentencing remarks).
Her Honour stated that the appellant, whilst having convictions for violence, did not have any convictions for violence that arose in the context of a domestic relationship.[9] Though, the learned Magistrate observed that the appellant had convictions for breach of orders arising from domestic relationships.
[9] ts 3 (07/07/2022) (sentencing remarks).
The learned Magistrate stated that 'looking at the prospect of your rehabilitation' and the outstanding treatment needs, it was appropriate that the sentence of imprisonment should be suspended.[10] The learned Magistrate imposed a term of imprisonment of six months suspended for a period of 12 months.
[10] ts 3 (07/07/2022) (sentencing remarks).

Appeal grounds

The appellant relies upon three grounds of appeal in the following terms:[11]
[11] Notice of appeal filed on 26 July 2022; application in an appeal filed on 20 October 2022.
GROUND 1
The Learned Magistrate erred in law in imposing a sentence of imprisonment of 6 months conditionally suspended for 12 months.
PARTICULARS
1.1Section 86 of the Sentencing Act 1995 in regard to the imposition of terms imprisonment states:
"A Court must not sentence an offender to a term of six months or less unless -
(a)the aggregate of the term imposed and any other term or terms imposed by the Court is more than six months; or
(b)the offender is already serving or is yet to serve another term; or
(c)the term is imposed under s. 79 of the Prisons Act 1981.
GROUND 2
The Learned Magistrate erred in law in imposing a sentence of imprisonment, (albeit conditionally suspended) when the seriousness of the offending and the personal circumstances of the Appellant were not such that only a sentence of imprisonment was appropriate.
PARTICULARS
2.1The criminality involved in the offence.
2.2.The Appellant's plea of guilty being entered at the earliest reasonable opportunity.
2.3The Appellant's remorse.
2.4The Appellant's personal circumstances at the time of the offense and when sentenced.
2.5The Prosecutor did not submit a sentence of imprisonment was called for.
2.6Sentences imposed in broadly comparative cases.
GROUND 3
The Learned Magistrate, in sentencing the Appellant, regarded the Appellant's criminal history as an aggravator factor, thereby increasing the Appellant's culpability in contravention of s.7(2)(b) of the Sentencing Act 1995.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[12] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[13]
[12] Criminal Appeals Act 2004 (WA), s 9(1).
[13] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[14] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[15]
[14] Criminal Appeals Act 2004 (WA), s 9(2).
[15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
The court may dismiss or allow the appeal and may set aside the sentence and substitute a sentence that should have been imposed.[16] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the court determines that a different sentence should have been imposed.[17]
[16] Criminal Appeals Act 2004 (WA), s 14.
[17] Roberts v The State of Western Australia [2014] WASCA 239 [47].

Assessment of the merits of the appeal

I will now consider the merits of each ground of appeal. Given that grounds one and three rely upon alleged express errors, I will first determine those grounds.

Ground three

By ground three the appellant contends that the learned Magistrate, in sentencing the appellant, regarded the appellant's criminal history as an aggravating factor, thereby increasing the appellant's culpability in contravention of s 7(2)(b) of the Sentencing Act.[18]
[18] Appellant's written submissions filed 20 October 2022 [39] - [41] (Appellant's written submissions).
The appellant relies upon the following paragraph of the learned Magistrate's sentencing remarks:[19]
I also need to impose a sentence that acts as specific deterrence, but in light of the fact that you are borderline schizophrenic and you are being treated, you don't - you're not a good vehicle or what we would call a good vehicle for general deterrence or specific deterrence in that regard, but you do have prior convictions for violence on your record, albeit they're not convictions that arise out of a domestic relationship, but you do have prior convictions for breaching orders which arise out of a domestic relationship.
[19] ts 3 (07/07/2022) (sentencing remarks).
The appellant contends that by that paragraph the learned Magistrate in effect considered the appellant's prior record as an aggravating factor and thereby contravened s 7(2)(b) of the Sentencing Act, which provides that an offence is not aggravated by the fact that the offender has a criminal record.[20]
[20] Appellant's written submissions [40].
An aggravating factor is a factor which, if the court finds exists, increases the culpability of the offender.[21] I do not accept the appellant's contention that the learned Magistrate regarded the appellant's prior conviction as an aggravating factor. Her Honour's statement regarding the appellant's prior criminal record must be read and understood in the context of the entire sentencing remarks. It is clear that the learned Magistrate did not take the appellant's prior criminal history into account as an aggravating factor. The learned Magistrate correctly identified the aggravating factors of the offending, being that the appellant was in a familial relationship with the victim and that therefore the offence was 'a breach of trust to a certain extent' and that the victim was injured.[22] The learned Magistrate expressly found that one common aggravating factor, namely, pre-meditation, was not present.
[21] Sentencing Act1995 (WA), s 7(1).
[22] ts 2 (07/07/2022) (sentencing remarks).
It is permissible for the learned Magistrate to take the criminal history of the appellant into account in determining the appropriate sentence.[23] In circumstances where an offender's criminal record shows that an offence is not an uncharacteristic aberration but rather demonstrates a continuing attitude of disobedience of the law then retribution, deterrence and the protection of the community may indicate that a more severe penalty is warranted.[24] The learned Magistrate's observation that 'I do reach a position where, given your past history I would have imposed a term of imprisonment', contrary to the submission of the appellant, is consistent with her Honour taking into account the appellant's criminal history in a permissible manner.
[23] Dreja v Sloan [2011] WASC 245 [18].
[24] Veen v The Queen [No 2] (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).
I find that ground three is without merit and therefore, leave is not granted on that ground.

Ground one

By ground one, the appellant contends that the learned Magistrate erred in law in imposing a sentence of imprisonment of six months conditionally suspended for 12 months, which breached the prohibition in s 86 of the Sentencing Act. The appellant accepts that the learned Magistrate did err in law by imposing a term of imprisonment of six months conditionally suspended for 12 months. I find that the concession is properly made.
Section 86 of the Sentencing Act provides:
86. Term of 6 months or less not to be imposed
A court must not sentence an offender to a term of 6 months or less unless -
(a)the aggregate of the term imposed and any other term or terms imposed by the court is more than 6 months; or
(b)the offender is already serving or is yet to serve another term; or
(c)the term is imposed under section 79 of the Prisons Act 1981.
The effect of s 86 is that, subject to the express exceptions in the section itself, unless a sentence of at least six months and one day is appropriate in all the circumstances, imprisonment is not an available sentencing option.
Where imprisonment is the only appropriate option, regard must be had to the fact that any term of imprisonment cannot be six months or less. If having regard to all of the circumstances of the case, the court concludes that (but for the prohibition in s 86) any appropriate term of imprisonment would be six months or less, the court is required to consider one of the other sentencing options in s 39(2) of the Sentencing Act. The prohibition in s 86 of the imposition of terms of imprisonment of six months or less applies in respect of sentences of suspended imprisonment under pt 11 or conditionally suspended imprisonment under pt 12 of the Sentencing Act.[25]
[25] Johnson v Vander Sanden [2021] WASCA 27.
Accordingly, her Honour erred in law in imposing a conditionally suspended term of imprisonment of six months.
Given that ground one has been allowed, I must determine whether, despite the ground being decided in favour of the appellant, the appeal should be dismissed because there has been no miscarriage of justice.

Whether there has been a miscarriage of justice

The respondent submits that, having found that ground one has been made out, there are two alternative options for the court. First, that the matter should be remitted back to the Magistrates Court for the learned Magistrate to correct the sentence imposed under s 37 of the Sentencing Act. Alternatively, the respondent submits that the appeal should be allowed and that the sentence be set aside and in lieu thereof a conditionally suspended term of imprisonment of six months, one day be imposed. I do not accept the respondent's submission.
Section 37 of the Sentencing Act relevantly provides that if a court sentences an offender in a manner that is not in accordance with the Sentencing Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.[26] The power may be exercised by a court on its own initiative or on an application by the offender or the prosecutor.[27] The application of s 37 of the Sentencing Act was considered by the Court of Appeal in Traegar v Pirse De Albuquerque.[28]
[26] Sentencing Act 1995 (WA), s 37(1).
[27] Sentencing Act 1995 (WA), s 37(2).
[28] Traegar v Pirse De Albuquerque (1997) 18 WAR 432.
Subsequent to the sentencing hearing, the prosecution made an application to the learned Magistrate seeking to recall the matter and correct the sentence pursuant to s 37 of the Sentencing Act. On 27 August 2022, the application was heard before her Honour. This appeal was commenced on 25 July 2022. Counsel for the appellant submitted to the learned Magistrate that the appellant was exercising his right of appeal with two grounds. During discourse, counsel for the appellant observed that there was an issue with the term of imprisonment being six months rather than six months, one day. Her Honour stated that she thought that the sentence could be less.[29] The learned Magistrate declined to recall the matter given that the appellant was exercising his right of appeal under the Criminal Appeals Act.
[29] ts 3 (27/09/2022).
The respondent contends that her Honour erred in refusing to hear the application to recall the matter to correct the sentence. I disagree. The learned Magistrate was made aware that the appellant had commenced an appeal. The grounds pleaded in the notice of appeal at that time pleaded two grounds namely, the express error concerning s 86 of the Sentencing Act and a ground contending that the sentence was manifestly excessive in that a different type of sentence should have been imposed. The learned Magistrate was unable to recall the matter to consider a claim of manifest excess in respect of the sentence imposed. Section 37 is not a substitute for the appellate system. The principle of finality forms part of the common law background against which a provision that confers power to reopen concluded proceedings is to be considered.[30]
[30] Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141.

In Traegar v Pirse De Albuquerque, the power under s 37 was held to extend to a case in which a magistrate had failed to impose a minimum mandatory sentence because he had not been informed of prior convictions of the defendant which attracted that mandatory minimum. In TheState of Western Australia v Wallam,[31] the Court of Appeal held that the statutory power to reopen a matter arises in cases where the sentence imposed was not one which could lawfully be imposed under the Sentencing Act or the written law under which the offence was committed. In this case, the appellant has exercised his right of appeal with multiple grounds including a claim that the sentence was manifestly excessive. The learned Magistrate correctly decided not to deal with an application under s 37 of the Sentencing Act.
[31] The State of Western Australia v Wallam [2008] WASCA 117.
In written submissions, the respondent submits that I should order that the matter be recalled by the learned Magistrate to deal with an application to correct the sentence. That is, I should order that the matter be returned to the learned Magistrate under s 37. Counsel for the respondent accepted at the hearing of the appeal that there are difficulties with the learned Magistrate correcting sentence under s 37.
The respondent contended that a proceeding under s 37 of the Sentencing Act is generally preferable for the reason that the costs will be much greater on appeal and that the right to appeal remains should a party be aggrieved by the manner in which the learned Magistrate dealt with and recalled the matter under s 37. Further, the respondent submits that the error may be corrected by the same judicial officer rather than an appeal court who may be required to hypothesise as to how the error affected the magistrate's decision.
The respondent's written submission is misconceived. The appellant has exercised his right to appeal. The parties to the appeal have filed written submissions addressing three grounds of appeal. I have received submissions concerning the alleged express errors and a claim that the sentence imposed is manifestly excessive. The learned Magistrate is unable to revisit the sentence to determine if the sentence imposed is manifestly excessive. I must determine the appeal. Moreover, s 37 grants a power to a court that has sentenced an offender. The power may be exercised by that court on its own initiative or on an application by the offender or the prosecutor. It is not a power granted to the appellate court to direct the court below to correct sentence.
I now turn to the alternative submission of the respondent being that I should impose a term of imprisonment of six months, one day conditionally suspended. The submission of the respondent is misconceived for the following reasons.
First, the respondent is expressing an opinion as to the precise term of imprisonment that the court should impose. It is impermissible for a party to specify the actual term to be imposed by a judicial officer.[32] An offender and prosecutor may make submissions concerning the type or range of sentences that are customarily imposed by reference to appellate court authorities but not make a submission stating the specific sentence that should be imposed.
[32] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.
Second, the respondent by submitting that a term of imprisonment of six months, one day should be imposed, is in effect inviting the court not to exercise the sentencing discretion but to arbitrarily impose a term of six months, one day. That I cannot do. I must determine the sentence after properly assessing and weighing all relevant factors.
Third, I am being invited to impose a term of imprisonment of six months, one day to circumvent the prohibition of s 86 of the Sentencing Act. It must be understood that a term of imprisonment of six months, one day cannot be imposed arbitrarily in order to circumvent s 86 of the Sentencing Act. I must determine that a term of imprisonment of six months, one day is the appropriate sentence in the proper exercise of my discretion.
Fourth, the respondent, having conceded that the appeal should be allowed and the term of imprisonment be set aside, is submitting that I should resentence the appellant to an increased term of imprisonment. Therefore, the consequence of the respondent succeeding in his appeal is that he serves a greater term of conditionally suspended imprisonment. I am unable to allow the appeal and resentence the appellant to a higher term of imprisonment.
Therefore, I am in this position. I have found that leave is granted on ground one and that the ground is made out. Further, I have determined that the consequence of allowing ground one is that the appeal must be allowed. A different sentence must be imposed given that a term of conditionally suspended imprisonment of six months, one day is contrary to law. I am unable to increase the term of imprisonment by one day arbitrarily to circumvent s 86 of the Sentencing Act. I must properly exercise my sentencing discretion.
In the proper exercise of my sentencing discretion, I have determined that the conditionally suspended term of imprisonment of six months must be set aside and in lieu thereof an intensive supervision order is imposed. The intensive supervision order is for a period of 12 months with conditions.
I have made this determination after considering the following sentencing considerations.
The maximum penalty for the offence, given that the appellant's offending was committed in circumstances of aggravation, is a fine of $36,000 or imprisonment for three years.
The learned Magistrate afforded the appellant a 25% discount pursuant to s 9AA of the Sentencing Act for the plea of guilty at the first reasonable opportunity.
The appellant accepted responsibility for his offending and was remorseful.
The offending did occur in the context of a domestic relationship. Fortunately, the injuries sustained were not serious, being a small two cm cut to his partner's forehead and a scratch to her right forearm. The act was not pre-meditated and was not persistent. The appellant, whilst having convictions for offences of violence, has not previously assaulted any person with whom he was in a domestic relationship and has not committed an offence of violence since 2014.
In this type of offending, general deterrence is an important sentencing consideration. Further, personal deterrence is a relevant sentencing factor in respect of the appellant. However, the learned Magistrate expressly found that the effect of both general and personal deterrence were reduced given the personal circumstances of the appellant, namely the appellant's diagnosis and treatment for schizophrenia. Whilst the nexus between the appellant's mental health and the offending appears to be tenuous, her Honour's finding is not challenged on appeal.
The learned Magistrate accepted that the appellant was remorseful and on a fair reading of the sentencing remarks I am satisfied her Honour considered that, whilst the appellant had outstanding treatment needs, he has sound prospects for rehabilitation. Indeed, her Honour suspended the term of imprisonment on the basis of the appellant's prospects of rehabilitation and the benefit of addressing the treatment needs by serving his sentence in the community.[33]
[33] ts 3 (07/07/2022) (sentencing remarks).
I have considered the range of sentences customarily imposed for this type of offending.
The appellant referred to a number of authorities including: Pedrochi v Brown;[34] McComish v Harman;[35] Duncan v The State of Western Australia;[36] The State of Western Australia v Cheesman;[37] Elliot v Blanchard;[38] Wallam v Dent[39] and Medanovic v The State of Western Australia.[40] The respondent referred to the same authorities.
[34] Pedrochi v Brown [2021] WASC 81.
[35] McComish v Harman [2016] WASC 324.
[36] Duncan v The State of Western Australia [2018] WASCA 154.
[37] The State of Western Australia v Cheesman [2011] WASCA 15.
[38] Elliot v Blanchard [2007] WASC 289.
[39] Wallam v Dent [2008] WASC 170.
[40] Medanovic v The State of Western Australia [2016] WASC 237.
I have read the authorities often and did so again for this appeal. I do not propose to outline the factual circumstances of each case. To do so serves no purpose. There is no sentencing tariff for the offence of aggravated assault occasioning bodily harm.[41] The guidance afforded by comparable cases is flexible rather than rigid.[42] A sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. When an appellant court dismisses an appeal against sentence this does not, of itself, fix the upper or lower limit of the range.
[41] Duncan v The State of Western Australia [2018] 154 [45] - [47].
[42] Kabambi v The State of Western Australia [2019] WASCA 44.
Having considered all relevant sentencing factors, I am satisfied that a conditionally imposed term of imprisonment is unreasonable. Other sentencing options are reasonably open. I am mindful that the learned Magistrate found that the effect of both general and personal deterrence were reduced and that the appellant had outstanding treatment needs with sound prospects for rehabilitation. The appellant's last conviction for violence was in 2014 and he has not previously committed an assault in a domestic relationship.
The appellant's offending was a single act of spontaneous violence. The assault was neither premeditated nor persistent. There was no suggestion that the appellant was engaging in any ongoing pattern of violence, threats, control or gaslighting of his partner.
In imposing this sentence I must stress that acts of violence in a domestic relationship are serious and offenders will receive condign punishment. General deterrence is ordinarily a significant sentencing factor. It must also be understood that the resentencing of the appellant in this appeal arises from the learned Magistrate breaching the prohibition under s 86 of the Sentencing Act.
Therefore, the conditionally suspended term of imprisonment is set aside and in lieu thereof an intensive supervision order with conditions for a period of 12 months is imposed.
Given that I have allowed the appeal on ground one and resentenced the appellant, I need not address ground two. I will not grant leave on ground two.

Conclusion

Accordingly, leave to appeal is granted on ground one and not granted on ground two and three and the appeal is allowed. I set aside the conditionally suspended term of imprisonment of six months and in lieu thereof, impose an intensive supervision order for a period of 12 months.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
21 DECEMBER 2022