Castrilli v The State of Western Australia - [2019] WASCA 135

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CASTRILLI -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 135
CORAM:   BUSS P
MAZZA JA
PRITCHARD JA

HEARD:   11 APRIL 2019
DELIVERED          :   11 APRIL 2019
PUBLISHED           :   29 AUGUST 2019
FILE NO/S:   CACR 37 of 2019
BETWEEN:   MITCHELL CORNELIUS CASTRILLI
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number             :   IND 1605 of 2017

Catchwords:

Criminal law - Sentencing - Appeal against sentence heard on expedited basis - Appellant punched victim in the head and victim fell to the ground unconscious - One count of assault occasioning bodily harm - Section 317(1) of the Criminal Code (WA) - Appellant convicted after entering plea of guilty - Appellant sentenced to 12 months' immediate imprisonment - Whether manifestly excessive

Criminal law - Sentencing - Parity principle - Where co-offender pleaded guilty to the more serious offence of grievous bodily harm contrary to s 297(1) of the Criminal Code (WA)

Criminal law - Sentencing - Mitigating effect of offer to plead guilty before trial - Appellant offered to plead guilty to statutory alternative to grievous bodily harm - Appellant ultimately convicted of offence in respect of which offer was made

Legislation:

Criminal Code (WA), s 297(1), s 317(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr J L Podmore & Ms A N Blackburn
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	DG Price & Co
Respondent	:	Director of Public Prosecutions (WA)

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

Ali v The State of Western Australia [2013] WASCA 55
Clarke v The State of Western Australia [No 2] [2013] WASCA 197
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78
Holden v The State of Western Australia [2009] WASCA 50
Kilner v The Queen [1999] WASCA 189
Mical v Ward [2003] WASCA 149
Mourish v The State of Western Australia [2006] WASCA 257
Spirovski v The State of Western Australia [2017] WASCA 230
The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v Smith [2019] WASCA 42
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

JUDGMENT OF THE COURT:

This is an appeal against sentence. The appellant required leave to appeal. His application for leave was referred to the hearing of the appeal.
The appellant was charged on indictment with one offence, namely that on 5 March 2017, he unlawfully did grievous bodily harm to another person (GBH offence), contrary to s 297(1) of the Criminal Code (WA). In January 2019, he was tried in the District Court for the GBH offence. On the first day of the trial, the appellant entered a plea of guilty to the offence of assault occasioning bodily harm (AOBH offence), contrary to s 317(1) of the Criminal Code, which was a statutory alternative to the GBH offence.[1] The appellant was acquitted of the GBH offence and was convicted, on his plea, of the AOBH offence.
[1] Trial ts 187.
Gething DCJ sentenced the appellant to 12 months' immediate imprisonment in respect of the AOBH offence. The sentence commenced on 1 March 2019. The appellant was made eligible for parole.
The appellant's appeal against sentence was heard on an expedited basis.
Counsel for the appellant advanced four grounds of appeal. At the conclusion of the appeal hearing, we made orders refusing leave to appeal on each ground and dismissing the appeal, and indicated that we would provide our reasons for doing so at a later date. These are those reasons.

The circumstances of the offence

The circumstances of the AOBH offence, as found by the learned sentencing judge, were as follows.
On the afternoon of 5 March 2017, the appellant and two friends left Barrack Street Jetty on a boat cruise on the Swan River. Another guest on the cruise was Mr Daniel Craddock. The appellant and Mr Craddock did not know each other. Also on the cruise was the victim of the offence (victim), who was with his girlfriend. The appellant and the victim did not know each other.
The cruise lasted for about four and a half hours. Guests on the cruise were permitted to bring their own alcohol. The appellant and his friends consumed a significant amount of alcohol throughout the cruise. By the end of the cruise, the appellant was drunk.
The boat arrived back at Barrack Street Jetty at approximately 5.30 pm. The appellant was talking and dancing with a girl on the dance floor of the boat when he felt water being thrown over his back. He turned to see the victim standing behind him holding an empty bottle of water. The appellant became angry with the victim and started yelling at him, and the victim shouted back. Some pushing and shoving occurred between the two of them, but it did not amount to anything. The appellant walked off feeling furious and embarrassed. The appellant subsequently left the boat on his own.
After the guests left the boat, a number of them milled around near the road at the Barrack Street Jetty. The appellant walked up to a group of people to see if he could find anyone he knew. That group of people included Mr Craddock.
At around the same time, the victim left the boat with his girlfriend. He tried to approach the group which included Mr Craddock and the appellant, and his girlfriend tried to restrain him from doing so. The victim started screaming, and someone else in the crowd began shouting about water being thrown. At this point, Mr Craddock pointed towards the victim. The appellant saw Mr Craddock do that, and thus himself saw the victim.
The appellant instantly felt angry. He walked up to the victim and punched him in the head with a closed roundhouse punch, which was delivered with considerable force. At the time, the victim's attention was directed towards Mr Craddock. He did not see the appellant approach him and was totally unprepared for the punch. The force of the punch rendered the victim unconscious and he fell to the ground. The appellant then moved away from the victim.
While the appellant's assault on the victim was occurring, Mr Craddock tried to approach the victim, but was initially restrained by others. After the victim fell to the ground, Mr Craddock broke free of those restraining him, approached the unconscious victim, and stomped on his head.
CCTV cameras recorded the conduct of the appellant and of Mr Craddock. The footage of the incident was viewed by the sentencing judge and by this Court.
The victim sustained bilateral jaw fractures, which required surgery. He spent several days in hospital.

The basis for the sentence imposed by the learned sentencing judge

The sentencing judge found that the appellant's punch caused the victim to become unconscious and fall to the ground, and that the punch carried the risk that the victim would sustain a serious injury, such as a fractured jaw or a serious head injury, and also a risk of death.[2] His Honour accepted that an injury of the kind in fact sustained by the victim was a real risk of the assault committed by the appellant.[3] His Honour also found that when the appellant punched the victim, he knew that that punch carried the risk of causing serious injury to the victim.[4] He made no finding as to the appellant's specific intention when he hit the victim.
[2] Sentencing ts 427; White Appeal Book (WAB) 81.
[3] Sentencing ts 427; WAB 81.
[4] Sentencing ts 428; WAB 81.
The learned sentencing judge characterised the appellant's conduct as a very serious instance of an assault occasioning bodily harm offence. His Honour identified five factors which demonstrated the seriousness of the appellant's offending: the degree of force the appellant used to strike the victim; the victim's position of vulnerability when the appellant hit him, in that he was totally unprepared for the punch; the appellant's knowledge of the risk of serious injury to the victim by virtue of the punch to his head; the seriousness of the injuries suffered by the victim, in that the effect of the punch was to cause him to become unconscious and fall to the ground, and that carried the risk of further serious injury; and the fact that the assault was unprovoked, and to the extent that it was a response to the earlier incident on the boat where the victim sprayed water onto the appellant, it was entirely disproportionate to the victim's actions.[5]
[5] Sentencing ts 428 ‑ 429; WAB 82 - 83.
The learned sentencing judge identified the following mitigating factors. First, the appellant offered a plea of guilty to the AOBH offence. We will discuss that plea offer in more detail later in these reasons. Secondly, the learned sentencing judge accepted that the appellant had expressed genuine remorse for his actions and their consequences for the victim. Thirdly, the learned sentencing judge took into account the fact that the appellant had strong family support.
The learned sentencing judge accepted that the appellant committed the offence under the influence of alcohol, although his Honour noted that that was not a mitigating factor.
The learned sentencing judge regarded the appellant as presenting a reduced risk of re‑offending, for three reasons. The first was the remorse the appellant had expressed for his conduct. Secondly, the appellant recognised that the consumption of alcohol had contributed to his offending, and had taken steps to address this behaviour, including undertaking counselling and completing courses, and he had also significantly reduced his consumption of alcohol. Thirdly, the learned sentencing judge accepted that the appellant had generally lived a law‑abiding and productive lifestyle, and that he had ample pro‑social support. The learned sentencing judge had regard to a number of character references which were provided to the Court at the sentencing hearing. The referees described the appellant in favourable terms, they regarded the appellant's offending as out of character for him, and they confirmed his remorse was genuine.
The appellant had a criminal record, and was therefore not entitled to the mitigating effect of prior good character. He had two convictions for disorderly behaviour in public, in 2012 and in 2015, and a conviction for failing to obey an order given by a police officer. The learned sentencing judge noted that each of the disorderly behaviour convictions arose from conduct late on a Saturday night, and involved the appellant engaging in fights with other males in a public area. The learned sentencing judge regarded the present offence as a 'serious escalation in [the] force used, harm caused and potential for greater harm'.[6] His Honour concluded that there was a need to ensure that the sentence imposed on the appellant was firm enough to act as a personal deterrent to further offending of this kind.
[6] Sentencing ts 433; WAB 87.
The learned sentencing judge also considered that general deterrence was an important consideration in the sentence imposed in this case, having regard to the increasing prevalence of 'one‑punch' violent offending in public, and the need to deter others from committing similar acts of senseless violence.
His Honour was satisfied that the seriousness of the offending in this case required the imposition of a term of imprisonment, and that service of a term of imprisonment was warranted for the protection of the community.
After having regard to all of these matters, and after having considered cases identified by counsel which were said to involve similar offending, and after taking into account the sentence imposed on Mr Craddock (about which we will say something further in a moment), the learned sentencing judge concluded that the seriousness of the appellant's offending warranted a sentence of 12 months' imprisonment.
The learned sentencing judge then considered whether that sentence of imprisonment should be suspended. Notwithstanding the appellant's plea of guilty, his remorse, the steps he had taken to correct his behaviour, and his prospects for a productive lifestyle in the future, given his strong family support and stable employment, the learned sentencing judge concluded that it was not appropriate to suspend the sentence of imprisonment because of the seriousness of the offending and the need to deter others from committing offences of this kind.

The appellant's personal circumstances

The appellant was 27 years of age at the date of the offence, and 29 years of age at the date of sentencing.
The appellant had an unremarkable childhood. He is one of three children. His parents separated when he was young, and his father remarried. The appellant has the support of his family. At the time of sentencing, the appellant was in a stable relationship. He has no children.
The appellant left school towards the end of year 11, and obtained an apprenticeship. He went on to complete the apprenticeship as a painter and decorator. He had worked for the same employer in that industry since 2007.

Impact of the offending on the victim

The learned sentencing judge took into account the impact of the offending on the victim. The victim suffered from continuing physical and psychological effects from the offending committed by both the appellant and Mr Craddock. The learned sentencing judge noted that it was difficult to dissect the impacts on the victim into the precise consequences of each of the two assaults.[7]
[7] Sentencing ts 427; WAB 81.
Apart from the physical injuries caused by the two assaults, the learned sentencing judge took into account the overall impact of both assaults on the victim. These included difficulty sleeping, and a post‑traumatic stress disorder, which resulted in the victim experiencing fear and hypersensitivity to being attacked again. The victim also felt anxious in social situations and no longer liked to go out for social activities.

Grounds of appeal

The appellant advanced four grounds of appeal:
(1)The sentence of 12 months' immediate imprisonment was manifestly excessive given sentences imposed in comparable cases, the appellant's plea of guilty, previous offers to plead guilty, remorse, efforts at and good prospects of rehabilitation and the criminality of the offence.
(2)The learned sentencing judge erred by not correctly applying the principle of parity between the appellant and the co‑offender [Mr Craddock].
(3)The learned sentencing judge erred by giving insufficient credit for the plea of guilty.
(4)The learned sentencing judge erred in his characterisation of the offence as a very serious example of an offence of its type.
Before turning to the grounds of appeal, it is appropriate to recall the well-established principles applicable to sentencing appeals. Those principles include the following:[8]
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the offender's personal circumstances.
(3) The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(5)Reference to comparable cases may identify a sentencing range for offences of the kind in question. However, the fact that a sentence is within or outside that range does not necessarily establish that the sentence involved an appropriate, or erroneous, exercise of the sentencing discretion.[9]
[8] See, eg, Ha v The State of Western Australia [2019] WASCA 69 [28].
[9] Halmi v The State of Western Australia [2013] WASCA 229 [33].
We turn, now, to the grounds of appeal. It is convenient to deal, first, with ground 3, then with ground 2, and finally with grounds 1 and 4.

Ground 3

The learned sentencing judge gave the appellant a discount of 17% for his early offer to plead guilty to the AOBH offence of which he was ultimately convicted. The appellant's ultimate contention was that a discount of greater than 17% and approaching 25% should have been given to reflect the fact that the appellant offered to plead guilty at an early stage.[10]

The procedural history relevant to the appellant's offer to plead guilty

[10] Appeal ts 9 - 10.

The procedural history relevant to the appellant's plea of guilty (as to which there was, in the end, no dispute[11]) was as follows:
[11] See parties' draft chronologies; see also appellant's amended submissions [3] - [19].
(a)5 March 2017 - the appellant was charged with the GBH offence;
(b)17 March 2017 - an initial medical report, obtained by the State, indicated that the victim suffered bilateral jaw fractures, but did not include any opinion as to whether the appellant's punch, or the assault by Mr Craddock, was likely to have caused the fractures;
(c)24 November 2017 - the matter was listed for a trial commencing on 16 April 2018;
(d)13 February 2018 - Mr Craddock was sentenced on the basis that his stomp to the victim's head caused the jaw fractures;
(e)14 February 2018 - the appellant offered to plead guilty to assault occasioning bodily harm if the grievous bodily harm charge was discontinued;
(f)27 February 2018 - the State rejected the appellant's plea offer;
(g)12 April 2018 - the State advised the appellant's counsel, in the course of ongoing disclosure, that the State had been advised by its doctor, during a proofing session, that grievous bodily harm could have been caused by either the punch or the stomp or a combination of both;
(h)12 and 13 April 2018 - the appellant's counsel became aware of Mr Craddock's sentencing and received a copy of the transcript of that hearing;
(i)16 April 2018 - the appellant's trial was adjourned to permit discussions concerning the State's continued prosecution of the appellant for the GBH offence, in light of the factual basis on which Mr Craddock had been sentenced;
(j)23 April 2018 - the State confirmed it would continue with the prosecution of the appellant for the GBH offence;
(k)27 April 2018 - the appellant applied for a permanent stay of the proceedings against the appellant;
(l)20 December 2018 - the appellant's application for a permanent stay was refused by Braddock DCJ, but her Honour observed that the State's case in respect of the GBH offence was tenuous. The matter was then re‑listed for a trial commencing on 21 January 2019;
(m)10 January 2019 - the appellant again offered to plead guilty to the AOBH offence if the charge for the GBH offence was withdrawn;
(n)14 January 2019 - the State rejected the plea offer and informed the appellant it would proceed with the prosecution for the GBH offence;
(o)17 January 2019 - a further medical report obtained by the State confirmed that the victim's jaw fractures could have been caused by the appellant's punch, or Mr Craddock's assault, or a combination of both;
(p)21 January 2019 - at the commencement of the trial, the appellant entered a plea of guilty before the jury, in respect of the AOBH offence, as a statutory alternative to the GBH offence;[12]
(q)22 January 2019 - the appellant's lawyers tendered a document in which the appellant formally admitted that he punched the victim, causing him to lose consciousness and fall to the ground;[13] and
(r)24 January 2019 - the appellant was acquitted of the GBH offence and convicted, on his plea, of the AOBH offence.

Principles applicable to the mitigating effect of an offer to plead guilty

[12] Trial ts 187.

[13] Trial ts 246.

Section 9AA of the Sentencing Act 1995 (WA) (Sentencing Act) applies to pleas of guilty. It does not apply to offers to plead guilty, whether to an offence for which an accused is to be tried, or to an alternative offence to that for which an accused is to be tried. However, an offer may be taken into account as a mitigating factor if the accused is ultimately convicted of the offence in respect of which the offer was made.
Where an offender is convicted of an offence after trial, in circumstances where the offender previously offered to plead guilty to that offence but the prosecution rejected that offer and instead proceeded to trial on a more serious offence, and where the offender is acquitted of the more serious offence, the rejected offer to plead guilty is a mitigating factor to be taken into account in the exercise of the sentencing discretion.[14] The offer is treated as a mitigating factor because it may indicate remorse and an acceptance of responsibility and/or it may indicate a willingness to facilitate the course of justice.[15] Because of the close analogy between the rationales behind the mitigating effects of the entry of a plea of guilty, and an offer to plead guilty, the amount of any discount given should be informed by s 9AA of the Sentencing Act.[16]
[14] The State of Western Australia v Auckram [2013] WASCA 256 [95] (Buss JA); [165] (Mazza JA), [175] (Hall J agreeing generally with Buss JA).
[15] Auckram [166] (Mazza JA).
[16] Auckram [167] (Mazza JA).
The weight to be given to an offer to plead guilty, as a mitigating factor, will depend on all of the circumstances. Without being exhaustive, these circumstances may include, for example: when the offer was made; the form and terms of the offer, including whether the offer was made unconditionally; whether the offender entered a plea of guilty to the offence at the time of arraignment at their trial for the more serious offence; whether the offender conducted their defence at trial in a manner consistent with the offer; whether the trial judge made findings of fact, for the purposes of sentencing, that were inconsistent with the offer; and whether, and if so, to what extent, the making of the offer reflected the offender's acceptance of responsibility, and remorse or contrition.[17]

The appellant's submissions

[17] Auckram [97] (Buss JA); [168] (Mazza JA).

The appellant submitted that the discount of 17% given for his offer to plead guilty to the AOBH offence was insufficient, having regard to the following circumstances:[18]
(a)On 14 February 2018, the appellant first offered to plead guilty to the AOBH offence, if the charge of the GBH offence was withdrawn. That offer to plead guilty was made eight weeks prior to the originally scheduled trial date (of 16 April 2018), when medical evidence could not establish that the appellant was guilty of the charge on the indictment, namely the GBH offence;
(b)On 10 January 2019, the appellant again offered to plead guilty to the AOBH offence if the charge of the GBH offence was withdrawn;
(c)On 21 January 2019, the appellant pleaded guilty to the AOBH offence when the trial began;
(d)The appellant's case at trial was consistent with his offers to plead;
(e)The sentencing judge's factual findings were consistent with the appellant's offers to plead; and
(f)Making the offers reflected an acceptance by the appellant of his responsibility for the harm which, at sentencing, it was accepted he had caused to the victim, namely the loss of consciousness.
[18] Appellant's amended submissions [50].
Counsel for the appellant submitted that the first reasonable opportunity for the appellant to offer to plead guilty to the AOBH offence was when the medical evidence was disclosed, which indicated that the grievous bodily harm could have been caused by either the punch, the stomp or both. However, the appellant had in fact offered to plead guilty some months prior thereto.[19]

No error shown in the exercise of discretion as to the discount given for the offer to plead

[19] Appellant's amended submissions [49].

There was no merit in this ground of appeal. The appellant first made a conditional offer to plead guilty to the AOBH offence on 14 February 2018, which was about eight weeks before the originally scheduled trial date.
It is true that the appellant's offer to plead, on 14 February 2018, was made before the State obtained and disclosed medical evidence as to the cause of the victim's fractured jaw. However, the dispute about the cause of that injury pertained to whether the State would ultimately be able to establish that the appellant's conduct caused the injury constituting the grievous bodily harm suffered by the victim. The clarification of that evidence was not necessary to give the appellant a reasonable opportunity to determine whether to offer a plea of guilty to the statutory alternative to the GBH offence.[20] It was always open to the appellant to unconditionally indicate a willingness to plead guilty in respect of that statutory alternative, and then to negotiate for the discontinuance of the charge for the GBH offence.
[20] cf Higgins v The State of Western Australia [2019] WASCA 78 [123] - [124] (Beech JA, Buss P & Pritchard JA agreeing) and the cases cited therein.
Furthermore, just as the strength of the State's case is relevant to the exercise of discretion in fixing the amount of a discount in cases to which s 9AA of the Sentencing Act applies, the strength of the State's case will also be relevant in fixing any discount for an offer to plead guilty to an alternative charge, in recognition of the mitigating effect of that offer. Given that the CCTV footage recorded the assault committed by the appellant, there could be little doubt, from the outset, that the State would have a very strong case against the appellant on the statutory alternative to the GBH offence, namely the AOBH offence. In those circumstances, even if the appellant's offer to plead guilty to that charge had been made at the earliest reasonable opportunity, it would have been open to the sentencing judge to reduce the discount granted in recognition of that mitigating factor.
In all of the circumstances, the discount of 17% given to the appellant for his offer to plead guilty to the AOBH offence was within a proper exercise of the sentencing judge's discretion.

Ground 2

The nub of ground 2 is that Mr Craddock was a co‑offender, and therefore the learned sentencing judge was obliged, by virtue of the parity principle, to impose a sentence on the appellant that was sufficiently disparate from that imposed on Mr Craddock as to reflect the different criminality in their offending.[21]

The offence committed by, and sentence imposed on, Mr Craddock

[21] Appeal ts 6.

Mr Craddock was charged with the same GBH offence for which the appellant was tried. Mr Craddock pleaded guilty to that offence. The maximum penalty for the GBH offence was 10 years' imprisonment. Mr Craddock was sentenced on the basis that he accepted that his assault caused the victim's jaw fractures. Mr Craddock was sentenced by Davis DCJ.
Mr Craddock assaulted the victim when he lay unconscious on the ground, immediately after having been struck by the appellant. Mr Craddock's assault on the victim was not an impulsive act on his part. Rather, Mr Craddock broke free from those who had been restraining him from approaching the victim, ran up to the victim, and then jumped and stomped on the victim's head on the left-hand side of his face. Davis DCJ described Mr Craddock's offending as a 'brutal and deliberate stomping on the victim's head while he was obviously unconscious and utterly defenceless on the ground … [which] showed a complete disregard for the victim'.[22]
[22] Craddock sentencing ts 25; WAB 153.
Immediately after he stomped on the victim's head, Mr Craddock walked away from the scene. However, later that evening, he attended at a police station of his own accord, was arrested, and participated in a video record of interview in which he made full admissions to the offence. His explanation to the police for his conduct was that 'I didn't appreciate getting water splashed on me. I just snapped'.[23]
[23] Craddock sentencing ts 8; WAB 136.
Davis DCJ noted that according to one of the witnesses, the victim had sprayed some water around on the boat 'in a harmless, fun way'[24] and that the victim was 'drunk but not aggressive'.[25] Her Honour found that the victim's conduct could not in any way significantly mitigate Mr Craddock's conduct,[26] and noted that this was not a case where Mr Craddock had been splashed and had then snapped. Her Honour concluded that the only explanation for Mr Craddock's later assault on the victim was that he was 'so intoxicated that [he] overreacted'.[27]
[24] Craddock sentencing ts 26; WAB 154.
[25] Craddock sentencing ts 26; WAB 154.
[26] Craddock sentencing ts 27; WAB 155.
[27] Craddock sentencing ts 26; WAB 154.
Mr Craddock was 22 years of age at the time of the offence, and 23 years of age at the date of his sentencing. His parents separated when he was young and he was raised largely by his mother. He had a good education and completed year 12. Mr Craddock then completed a traineeship and worked as a glazier. He had the support of his family and friends. Mr Craddock had no prior criminal offences, and apart from this offending, was otherwise of good character.
Davis DCJ found that initially Mr Craddock sought to minimise his involvement in the offence and to blame the victim for what had occurred, but he had subsequently expressed some empathy for the victim, and remorse for his conduct, and had demonstrated some insight into the effect that alcohol had on him at the time of the offending.[28] Her Honour did not place much weight on his voluntary submission to the police, given that his conduct had been caught on the CCTV footage and Mr Craddock had been identified by other witnesses.[29]
[28] Craddock sentencing ts 28; WAB 156.
[29] Craddock sentencing ts 27 - 28; WAB 155 - 156.
Mr Craddock pleaded guilty at an early opportunity, and was given a 25% discount for that early plea pursuant to s 9AA of the Sentencing Act.
Davis DCJ described the assault committed by Mr Craddock as 'a violent and senseless attack caused by alcohol and anger on [Mr Craddock's] part'.[30] Her Honour found that the offence committed by Mr Craddock was serious, and warranted an immediate term of imprisonment. She concluded that the mitigating factors set out above warranted a reduction in the term of imprisonment imposed, and after the 25% reduction for his plea of guilty and a further reduction for the other mitigating factors, her Honour sentenced Mr Craddock to 16 months' immediate imprisonment, with eligibility for parole.

The parity principle

[30] Craddock sentencing ts 27; WAB 155.

Equal justice requires identical outcomes in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect.[31] In the sentencing context, the principle of equal justice is applied through the parity principle, which concerns the punishment imposed on two or more co-offenders for a common offence or offences.[32] The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. While the limits of what it means to be a co‑offender have not been defined with precision,[33] it is clear that the parity principle does not apply only to offenders charged with the same offences arising out of the same criminal conduct or enterprise, and formal identity of charges is not a necessary precondition of the application of the principle.[34]
[31] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [65] (Gaudron, Gummow and Hayne JJ); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan and Kiefel JJ).
[32] Green [28] (French CJ, Crennan and Kiefel JJ).
[33] Green [29] (French CJ, Crennan and Kiefel JJ).
[34] Green [30] (French CJ, Crennan and Kiefel JJ).
There can be significant difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences, especially when one offender is convicted of an offence which is less serious than that of another. Those difficulties do not, however, exclude the operation of the parity principle.[35]
[35] Green [30] (French CJ, Crennan and Kiefel JJ).
The application of the parity principle involves a discretionary judgment to which the principles in House v The King[36] apply.[37]

The appellant's submissions

[36] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[37] Stanley v The State of Western Australia [2018] WASCA 229 [40].

Counsel for the appellant submitted, on the one hand, that the differences between the appellant's antecedents, and those of Mr Craddock, were not significant.[38] On the other hand, counsel submitted that Mr Craddock's culpability was 'significantly higher' than the appellant's (with the result that a lesser sentence should have been imposed on the appellant) for the following reasons:[39]
(a)Mr Craddock was convicted of the GBH offence, which carries a maximum penalty double that of the AOBH offence.
(b)At the time of Mr Craddock's assault, he was aware that the appellant had already assaulted the victim and that the victim was unconscious on the ground, whereas the appellant did not know Mr Craddock and had no expectation that he would join the assault. The learned sentencing judge failed to give sufficient weight to his assessment that the victim was 'slightly more' vulnerable when Mr Craddock assaulted him.
(c)In order to assault the victim, Mr Craddock had to break free from those trying to restrain him, and that demonstrated an element of persistence or ongoing determination to commit violence on the victim, whereas the appellant delivered a quick, single punch.
(d)Mr Craddock was sentenced on the basis that his assault caused the victim's jaw fractures, whereas the appellant was sentenced on the basis that it could not be determined whether his actions caused the victim's jaw fractures. The long‑lasting physical effects on the victim appear to be as a result of the jaw injury, not the victim's period of unconsciousness.
[38] Appellant's amended submissions [42].
[39] Appellant's amended submissions [40].
Further, counsel for the appellant submitted that the learned sentencing judge erred in his conclusion that the appellant's offending was more serious than Mr Craddock's, on the basis that the appellant was the first to engage in physical violence. Counsel submitted that it was equally serious, if not worse, to join an attack on a person who was already unconscious on the ground.[40]

No breach of the parity principle

[40] Appellant's amended submissions [41].

The appellant did not demonstrate that the sentence imposed on him failed to reflect a proper parity with the sentence imposed on Mr Craddock. We reached that view having regard to the following considerations.
It is true that there were some important differences in the objective seriousness of the offences for which Mr Craddock and the appellant were convicted. Mr Craddock pleaded guilty to the GBH offence, which carried a higher maximum penalty, and he pleaded guilty to that charge on the basis that he caused the victim's jaw fractures. The AOBH offence to which the appellant pleaded guilty carried a maximum penalty of 5 years' imprisonment, and his plea of guilty was made in circumstances where he accepted rendering the victim unconscious, but not causing grievous bodily harm to the victim.
However, the application of the parity principle takes into account all of the facts and circumstances applicable to each offender, including the personal antecedents and mitigating factors applicable to them.[41] While the appellant's antecedents, and those of Mr Craddock, were similar in a number of respects (including that they had the support of family and friends, good employment histories and good prospects for rehabilitation), the mitigating factors applicable in Mr Craddock's case warranted a more significant discount than the discount warranted for the appellant's mitigating factors. Mr Craddock received a 25% discount for his plea of guilty, he had the benefit of youth, and he was of prior good character. The appellant, on the other hand, received a lesser discount for his offer to plead guilty, did not have the benefit of youth, and had prior convictions which suggested that personal deterrence and the protection of the public should inform the sentence imposed on him to a greater extent.
[41] Higgins v The State of Western Australia [2019] WASCA 78 [53] (Buss P).
Having regard to all of the circumstances relevant to the sentences imposed on Mr Craddock and on the appellant respectively, there was no objective basis on which the appellant could have a legitimate or justifiable sense of grievance about the extent of the disparity between his sentence and the sentence imposed on Mr Craddock.

Grounds 1 and 4

There was a good deal of overlap between grounds 1 and 4, which were ultimately directed to the question of whether the sentence imposed was manifestly excessive. The appellant's ultimate contention, in respect of these grounds, was that he should have been sentenced to a suspended term of imprisonment.[42]
[42] Appeal ts 7.
The thrust of the appellant's submissions in respect of ground 1 was that while the AOBH offence was serious, it did not warrant being characterised as a 'very serious' instance of offending of this kind. Counsel for the appellant did not dispute that the victim was in a position of vulnerability when the appellant hit him, or that the appellant's reaction was disproportionate to the victim's actions. Counsel did not contend that there was anything in the circumstances to explain the appellant's behaviour.[43] However, counsel submitted that the learned sentencing judge erred in taking other considerations into account, in characterising the offending as very serious.[44] None of those submissions had merit.
[43] Appellant's amended submissions [53(b),(e)].
[44] Appellant's amended submissions [53(a), (c), (d)], [54], [57] - [58].
First, counsel for the appellant submitted that the learned sentencing judge erred in taking into account that there was a risk that the victim would sustain a fractured jaw, in circumstances where the appellant was not sentenced on the basis that his actions caused the fractured jaw.[45] Counsel for the appellant also submitted that his Honour erred in taking into account the risk that the victim would die as a result of the appellant's punch, because any such risk was very low.[46]
[45] Appellant's amended submissions [53(a)].
[46] Appellant's amended submissions [53(a)].
The learned sentencing judge properly took into account the fact that the force with which the appellant punched the victim in the head, and without any warning to the victim, clearly carried with it the risk that the victim would suffer a very serious injury, or even death, either from the blow itself, or as a result of being knocked unconscious and falling to the ground and hitting his head.[47] Indeed, the force of the punch, and its likely consequences, were aspects of the circumstances of the commission of the AOBH offence which the learned sentencing judge was obliged to take into account in assessing the seriousness of that offence.[48]
[47] cf The State of Western Australia v Smith [2019] WASCA 42.
[48] Sentencing Act, s6(2)(b).
Secondly, counsel for the appellant submitted that in every case of an offence of assault occasioning bodily harm, the offender must realise that the assault carries the risk of causing serious injury. Counsel therefore submitted that the learned sentencing judge was wrong to reason that when the appellant punched the victim, he knew that his punch carried the risk of causing a serious injury,[49] and to rely on that fact to 'elevate the case into a "very serious" category'.[50] There was no merit in that submission. An assault occasioning bodily harm offence may be committed in a wide variety of circumstances, and may potentially result in a range of injuries sufficient to constitute bodily harm. Not all of the injuries potentially arising from such an offence will be serious. In contrast, a single punch to a victim's head, delivered with considerable force when the victim is taken by surprise and standing on a hard surface, obviously carries the potential to cause very serious injuries, or even death, to the victim. That obvious and inherent risk was an outcome which the appellant could properly be taken to have known. That knowledge clearly added to the seriousness of his offending conduct.
[49] See sentencing ts 428; WAB 82.
[50] Appellant's amended submissions [53(c)].

Thirdly, counsel for the appellant submitted that the only relevant injury caused to the victim, for which the appellant was responsible, was his loss of consciousness, and that an injury of that kind was not a 'very serious injury'.[51] We do not agree. To inflict a blow with such force as to render a victim immediately unconscious is a very serious assault. The CCTV footage clearly depicted the considerable force in that punch, which was sufficient to render the victim immediately unconscious, and which caused him to fall backwards and hit his head on the concrete on which he was standing. It was very fortunate that the victim did not sustain more serious physical injuries from the punch alone, let alone from hitting his head on the ground. Further, the appellant's submission focussed on the physical injuries sustained by the victim, and ignored the psychological consequences of the offending committed by the appellant, and by Mr Craddock. The ongoing psychological effects of violent offending on a victim are as much a part of the injuries actually sustained by that victim as their physical injuries.
[51] Appellant's amended submissions [53(d)].
Fourthly, counsel for the appellant submitted that the learned sentencing judge appeared to have proceeded on the basis that the injury to the victim's jaw could be taken into account, even though the appellant was not sentenced on the basis that his punch caused that injury.[52] Counsel submitted that the learned sentencing judge effectively proceeded on the basis that a person who causes another to be disabled by a blow should be liable for the reasonably foreseeable consequences of that blow.[53] There is nothing in the sentencing remarks made by the learned sentencing judge to suggest that his Honour proceeded on the basis that the appellant was liable for the foreseeable consequences of Mr Craddock's assault on the victim. The learned sentencing judge expressly stated that the appellant was not sentenced on the basis that he was responsible for the grievous bodily harm occasioned by the fractures to the victim's jaw.[54] The potential consequences to which his Honour had regard were limited to the potential consequences of the punch delivered by the appellant, and one of those potential consequences was that the victim could suffer a fractured jaw.
[52] Appellant's amended submissions [54].
[53] Appellant's amended submissions [58].
[54] Sentencing ts 429; WAB 83.
The learned sentencing judge's characterisation of the AOBH offence as a very serious example of offending of that kind was justified.

The contention that the sentence imposed was manifestly excessive

We turn, next, to the appellant's contention that the sentence imposed on the appellant of 12 months' immediate imprisonment was manifestly excessive. As we have noted, the maximum penalty for the AOBH offence was 5 years' imprisonment.
The appellant's counsel pointed to a number of cases which he submitted demonstrated the range of sentences commonly imposed for the offence of assault occasioning bodily harm, namely Kilner v The Queen;[55] The State of Western Australia v Camilleri;[56] Mical v Ward;[57] Mourish v The State of Western Australia;[58] Holden v The State of Western Australia;[59] Wiltshire v Mafi;[60] and The State of Western Australia v Cheeseman.[61]It is unnecessary to discuss those cases here. They were discussed in some detail in Spirovski v The State of Western Australia.[62] Counsel for the appellant submitted that those cases established that there is no tariff for the offence of assault occasioning bodily harm because of the significant variation in facts, but submitted that in cases involving a guilty plea, there was an acceptable range from 6 months' suspended imprisonment to 2 years' immediate imprisonment. Counsel also submitted that these cases made it clear that sentences other than immediate imprisonment were clearly within the range of an appropriate sentencing discretion for the offence of assault occasioning bodily harm. Both of those propositions are uncontroversial. Self‑evidently, the sentence imposed on the appellant fell within the range of sentencing outcomes identified in those cases. But that is not determinative of the present appeal. It is axiomatic that every case must be decided by reference to its specific facts and circumstances.
[55] Kilner v The Queen [1999] WASCA 189.
[56] The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394.
[57] Mical v Ward [2003] WASCA 149.
[58] Mourish v The State of Western Australia [2006] WASCA 257.
[59] Holden v The State of Western Australia [2009] WASCA 50.
[60] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.
[61] The State of Western Australia v Cheeseman [2011] WASCA 15.
[62] Spirovski v The State of Western Australia [2017] WASCA 230.
Counsel for the appellant relied, in particular, on two cases which he submitted were factually similar to the present case: Clarke v The State of Western Australia [No 2];[63] and Ali v The State of Western Australia.[64] In each of those cases, the sentence imposed for the offence of assault occasioning bodily harm was a suspended term of imprisonment. Counsel for the appellant also submitted that the learned sentencing judge erroneously relied on Spirovski, in which the offender was sentenced to 18 months' immediate imprisonment, given the factual differences between that case and the appellant's case.
[63] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.
[64] Ali v The State of Western Australia [2013] WASCA 55.
It is unnecessary to undertake a detailed analysis of these cases. None of them were closely comparable to the present case. Each of them had some similarities with the present case, but they were all different from this case in important respects. It suffices to make the following brief observations.
The offence in Clarke was committed in Northbridge in the early hours of the morning. Mr Clarke delivered a single punch to a stranger, with whom he had had a brief verbal altercation, culminating in both parties being 'up for a fight'. Mr Clarke's punch hit the other man in the head, and he immediately collapsed, struck his head on the ground, was rendered unconscious, and suffered an undisplaced skull fracture. Fortunately, the victim made a complete recovery from that injury. Mr Clarke pleaded guilty to the offence of assault occasioning bodily harm. The sentence ultimately imposed following an appeal was a term of imprisonment of 8 months, suspended for 9 months.
The appellant's offending was more serious than Mr Clarke's offending. The appellant assaulted the victim without any warning, and while the assault committed by Mr Clarke resulted in a more serious physical injury than that suffered by the victim in the present case, the same risk of injury was inherent in the punch inflicted in each case. Furthermore, Mr Clarke had the benefit of greater mitigating factors than the appellant. He entered a plea of guilty at the first reasonable opportunity, he had the benefit of youth, and he had no criminal record apart from some driving offences.
The nature of the assault in Ali and the factual circumstances in which it arose were also very different from this case. Mr Ali was a taxi driver who assaulted a passenger who was unable to pay his fare. Mr Ali lost his temper, got out of the taxi, grabbed the passenger by the collar and pulled it, twisting and hitting him as he fell to the ground, then punched him and stamped on his knee. He then drove off, taking the passenger's mobile phone with him. The sentence imposed, following an appeal, was 12 months' imprisonment, suspended for 12 months.
The appellant's offending was more serious than Mr Ali's offending. This Court concluded that Mr Ali's offending 'while serious, was not of the most serious kind'.[65] Mr Ali committed the assault in the spur of the moment, at a time when he was under considerable stress. He had no prior record for violence. The assault committed by Mr Ali was not in the nature of a one punch blow delivered with considerable force, and while it exacerbated his victim's pre-existing knee injury, the other injuries he suffered were not significant.
[65] Ali [18] (Newnes JA, McLure P & Mazza JA agreeing).
Spirovski bore some similarities to the present case, but there were still some important differences. Mr Spirovski was a security officer at a university tavern who became involved in an altercation with the complainant and his friend after Mr Spirvoski asked them to leave the premises. The complainant swore at Mr Spirovski, and he responded by punching the complainant in the face. The force of the blow knocked him to the ground. The complainant suffered displaced fractures of the nasal bones and the mid-face, and required surgery. Mr Spirovski was convicted after trial of assault occasioning bodily harm. Mr Spirovski was 25 years of age at the date of the offence and 27 years of age when sentenced. He had no relevant prior criminal offences and was sentenced on the basis that he was of prior good character. He was sentenced to 18 months' immediate imprisonment.
Mr Spirovski's offending was more serious than the appellant's, given that he was acting in a position of authority at the time, but Mr Spirovski had the benefit of prior good character in mitigation. On the other hand, the sentence imposed on Mr Spirovski did not reflect any discount for a plea of guilty, given that he was convicted after trial. When those differences are taken into account, the sentence imposed on the appellant is broadly consistent with the sentence imposed in Spirovski.
The standards of sentencing customarily observed constitutes only one of the considerations relevant to whether a sentence is manifestly excessive. Apart from the seriousness of the offending, other particularly important considerations in cases of the present kind are the role for general and personal deterrence in fixing the sentence. The sentences imposed for violent assaults committed by intoxicated persons, on others, in public, must leave no doubt that conduct of that kind is completely unacceptable. Members of the public are entitled to feel safe at public venues for social and recreational activities, particularly at night. Assaults involving a single punch, delivered with force, are of particular concern, given their potential to cause very serious injury or even death, and general deterrence is also an important component in sentencing for assaults of that kind. In the present case, and notwithstanding his positive antecedents, the appellant's prior convictions required a sentence that also involved an element of personal deterrence.
After taking into account the maximum penalty for the AOBH offence; the very serious nature of the appellant's offending; all of the facts and circumstances of the offence; the victim's vulnerability in that he was intoxicated and was struck without any warning while standing on a hard surface; the standards of sentencing customarily observed; all of the mitigating factors identified by the learned sentencing judge, including the appellant's positive personal circumstances and antecedents, and the appellant's offer to plead guilty; the sentence imposed on Mr Craddock; and all other relevant sentencing factors, we were satisfied that it was reasonably open to the learned sentencing judge to be satisfied that it was inappropriate to impose suspended or conditionally suspended imprisonment. His Honour was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment. Neither the type of sentence imposed nor the length of the term of imprisonment was unreasonable or plainly unjust. The existence of error was unable to be inferred from the sentencing outcome.
As none of the appeal grounds had merit, we refused leave to appeal on each of the grounds and dismissed the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FP
Associate to the Honourable Justice Pritchard
29 AUGUST 2019