Cheetham v Martin - [2021] WASC 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CHEETHAM -v- MARTIN [2021] WASC 87
CORAM:   SMITH J
HEARD:   22 MARCH 2021
DELIVERED          :   30 MARCH 2021
FILE NO/S:   SJA 1072 of 2020
BETWEEN:   LUKE ANTHONY CHEETHAM
Appellant
AND
WAYNE DAVID RYAN MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G BENN
File Number            :   JO 4928 of 2020

Catchwords:

Criminal law - Appeal against sentence - Manifest excess as to type and length of sentence - Whether term of imprisonment should have been suspended - Whether length of sentence manifestly excessive

Criminal law - Appeal against sentence - Assault causing bodily harm

Legislation:

Criminal Code (WA), s 317
Sentencing Act 1995 (WA), s 6(2), 6(4), s 9AA, s 76(1), s 76(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr C Townsend
Respondent	:	Ms K Cook

Solicitors:

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

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

Brown v The State of Western Australia [2010] WASCA 228
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Drage v The State of Western Australia [2021] WASCA 6
Duncan v The State of Western Australia [2018] WASCA 154
Fogg v The State of Western Australia [2011] WASCA 11
Golding v Gaunt [2020] WASC 361
Harvey v Ingles [2004] WASCA 30
Krencej v The State of Western Australia [2019] WASCA 82
Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289
Powell v Tickner [2010] WASCA 224
R v Liddington (1997) 18 WAR 394
Shi v The State of Western Australia [2020] WASCA 197
Shoard v Van Der Zanden [2013] WASC 163
Spirovski v The State of Western Australia [2017] WASCA 230
Stanley v The State of Western Australia [2018] WASCA 229
Tang v The Queen [2020] WASCA 194
The State of Western Australia v McCarthy [2014] WASCA 210
Tunney v The State of Western Australia [2013] WASCA 286

SMITH J:

The appeal, the grounds of appeal and the result

The appellant seeks leave to appeal the sentence imposed by a magistrate sitting in the Magistrates Court at Joondalup, for one count of assault causing bodily harm. On 16 September 2020, the appellant was sentenced, upon a plea of guilty, to a term of immediate imprisonment of 14 months, with parole eligibility. The appellant was ordered to pay costs of $118.50.
The appellant seeks to appeal the sentence on two grounds which allege implied error and raise for consideration whether the sentence was manifestly excessive as to the type of sentence, and the length of imprisonment.
In ground 1 of the appeal, it is alleged that the sentencing magistrate erred by not suspending, conditionally or otherwise, the term of imprisonment imposed. In ground 2 of the appeal, it is alleged the sentencing magistrate imposed a sentence that was manifestly excessive as to the length of sentence, having regard to the circumstances both referable to the offending and personal to the appellant.
Ground 2 of the appeal is pressed if ground 1 of the appeal fails.
For the reasons that follow, I have determined that leave to appeal should not be granted on either grounds 1 or 2 of appeal, and that the appeal should be dismissed.

The circumstances of the offence

At the time of the offence the appellant was 33 years old.
In the evening of 8 April 2020, the victim, who was 37 years old, and his wife were sitting in a spa in the yard of their home in Yanchep listening to music, and drinking alcohol. The victim and his wife were known to the appellant.
The appellant's parents reside next door to the victim.
At some time in the evening, the appellant and his wife spoke to the victim and his wife over the fence, and joined the victim and his wife in the spa. During the evening, they each consumed a number of alcoholic drinks.
At about 9.00 pm, the appellant and the victim were in the garden and their wives were drinking in the spa. The victim's wife called out to the victim and asked for help because the appellant's wife was intoxicated, and struggling to sit up in the spa.
The victim attempted to help the appellant's wife out of the spa by holding under her arms and from behind in an attempt to lift her out. The victim's wife (who was in the spa) tried to lift the appellant's wife by her legs. The appellant began to shout at them, 'Get off her. Get the fuck off her. Stop touching her up'. The victim attempted to calm the appellant by telling him, 'Don't be a fucking idiot. Come and help'.
Without warning, the appellant punched the victim to the head, causing him to stagger backward. The two men began to scuffle on the lawn area.
The victim's wife began screaming. The appellant and the victim were shouting at one another.
The two men were wrestling on the ground when the appellant's father came through the back gate of the victim's property and attempted to separate the pair, who were rolling around and fighting on the ground.
The appellant's father got in between the two men and lay across the victim, trying to push the appellant away. In this position, the victim was unable to defend himself.
Whilst the victim was being restrained on the ground by the appellant's father, the appellant began to stand up. As he did so, he kneed the victim twice to the head and punched him twice to the head. He then walked around the side of the victim, who was still being held down, placed both hands on top of the victim's head and kneed him to the head four times with his right knee. All four knee blows hit the victim to the head and face.
The appellant's father, aided by the victim's wife, continued to try and push the appellant away.
Whilst the victim lay injured on the ground in an apparent state of unconsciousness, the appellant stomped on the victim's head with his bare right foot. The appellant persisted in attempting to get to the victim as he laid on the ground. His father and the victim's wife were able to restrain him from doing so. After a short time, the victim began to get to his feet. As he did so, the appellant broke away from his father and the victim's wife. He grabbed the victim from behind in a headlock and pulled him to the ground. The appellant laid on top of the victim, as his father and the victim's wife tried to remove him.[1] After a short struggle, the appellant got up and was moved away by his mother.
[1] CCTV footage of the incident shows the victim's wife standing behind and bending over the back of the appellant, attempting to pull him away from the victim.
The victim was assisted to walk inside his house by the appellant's father.
The victim was taken by ambulance to Joondalup Health Campus. As a result of the assault he received extensive swelling and bruising to his face, and a fractured eye socket, which required surgery to insert metal screws. Four photographs of the victim's facial injuries were tendered by the prosecutor.
CCTV footage of the incident was viewed by his Honour. The footage commences at the point at which the appellant and the victim are wrestling on the ground, and continues until the victim is seen being assisted to walk to the back door of his house by the appellant's father.
The prosecutor sought an immediate term of imprisonment for the offence.

The matters put to the court in the plea in mitigation

The appellant's counsel put the following matters to the sentencing magistrate in mitigation:
(1)Having initially pleaded not guilty, but after having viewed the CCTV footage and engaged counsel to act on his behalf, the appellant had changed his plea to guilty. Until he saw the CCTV footage he did not realise his recollection of events was different, nor did he realise the seriousness of his actions.
(2)The appellant and the victim had known each other for quite some time prior to this incident. Earlier that day, the appellant had received a text message from the victim inviting him and his wife to the house.
(3)The appellant's recollection of the incident was not entirely accurate because of his intoxication with drugs and alcohol. At the time of the incident, both the victim and the appellant were intoxicated with drugs and alcohol, having ingested cocaine together, which had been offered to the appellant by the victim. The victim also offered the appellant DMT (dimethylptramine),[2] which he refused.
(4)When the appellant saw his wife lying flat in the spa, he became worried because he suspected that his wife had consumed a cigarette laced with drugs. When he saw the victim grabbing his wife, he believed that the victim was touching her crotch region and that is why he said, 'Get off her. Stop touching her up'. When he said that to the victim, the victim rushed towards him and he (the appellant) threw a punch and was wrestled to the ground.
(5)The appellant concedes that his actions are completely inexcusable.
(6)Whilst the appellant is not entitled to the full 25% discount, he is still entitled to some percentage of the discount (for his plea of guilty).
(7)The appellant concedes that anger is the main issue of his offending, and has sought counselling.[3] His counsellor indicates in a report that he is motivated to attend further counselling to deal with his anger.
(8)The appellant is very apologetic and has written to the court explaining how he saw himself and what he wishes to say to the victim, but for the protective bail condition. He accepts that there is no excuse for his behaviour.
(9)The appellant is an owner of a tiling company. He and his wife have been married for eight years and have three children, aged 6, 8 and 10. He is the primary breadwinner and fee earner for the family.
(10)The appellant is ashamed of what he has done. He has a clear deficit in his consequential thinking but he does have a positive motivation to change. He has shown some degree of insight into his offending and how to deal with his anger issues.
(11)It is conceded that the appellant's offending behaviour is very serious.
(12)The appellant's prior record is mainly concerned with traffic offences and some disorderly behaviour. He has not been given the opportunity of community supervision, and does have prospects of rehabilitation.
[2] Dimethylptramine is known to be a hallucinogenic drug.
[3] When the appellant's counsel referred to the fact that the appellant had voluntarily sought counselling, he tendered a copy of a report from EW Therapy written by Ms Elaine Walker a clinical hypnotherapist and specialist counsellor who is a qualified psychologist the appellant had engaged in counselling for anger management on four occasions, on and between 13 August 2020 and 10 September 2020.

The sentencing magistrate's remarks

The sentencing magistrate found that the appellant should be afforded a discount of 20% for his plea of guilty.
The sentencing magistrate characterised the assault as serious because:
(a)the assault was prolonged, it was not just one strike, it was multiple strikes with his knee and his foot to the victim's face and head;
(b)a number of the blows to the victim (multiple knees to the head and the stomp to the head) were delivered when the victim was restrained, unable to protect himself, motionless and lying on the ground;
(c)it is extraordinarily fortunate, both for the appellant and the victim that the injuries the victim suffered, as bad as they were, were not more serious. Given the nature of the assault directed at the victim's face and head, there was a very real potential for there to have been much more serious harm;
(d)the victim suffered significant injuries and a significant assault, as can be seen from the photographs, extensive injuries to his face, bruising and swelling, and a fractured eye socket that required surgery; and
(e)the assault was such that the appellant's father could not hold him back. The appellant kept coming again and again at the victim, in circumstances where there was absolutely no provocation.
The sentencing magistrate observed that the assault occurred at the victim's property where he had invited the appellant, when the victim was helping the appellant's wife, with his wife, to get out of the spa. His Honour found there was no basis for the appellant's belief that his wife was being groped by the victim, and found it was a product of the appellant's disordered, irrational and unclear thinking as a result of his state of intoxication.
His Honour also observed that the appellant did absolutely nothing to assist his wife (to get out of the spa).
The sentencing magistrate said that a penalty was required to be imposed for the offence that made it clear to the public that this kind of violence in the community would not be tolerated and acted as a personal deterrent to the appellant.
His Honour identified the following mitigating factors:
(a)the appellant has prospects for rehabilitation. In particular, it was significant that the appellant had started steps towards counselling to deal with anger management;
(b)the presentence report was favourable. In particular, the presentence report noted that the appellant had independently sourced psychological counselling, had started to come to some sort of realisation about his behaviour, and that he would clearly benefit from ongoing psychological counselling; and
(c)by his plea of guilty the appellant acknowledged his responsibility in the offending, and expressed his remorse.
The sentencing magistrate stated that he had considered all of the sentencing options open to him and that, given the very serious nature of the assault, a penalty that properly reflected the seriousness of the offence, general deterrence and specific deterrence was a term of imprisonment.
The sentencing magistrate then stated that he had considered whether the term of imprisonment should be suspended, conditionally or otherwise. It was his view that it should not be suspended because an immediate term of imprisonment of 14 months' imprisonment[4] with parole eligibility, could only properly reflect the principles that he referred to and, in particular, the very serious nature of the assault.
[4] Having first applied a discount of 20% (pursuant to s 9AA of the Sentencing Act 1995 (WA)).

General appellate sentencing principles – Implied error – Manifest excess

A ground of appeal that alleges manifest excess is a ground of appeal that asserts implied, rather than express, error. The principles of implied error are well‑established.
Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.
Where there is an allegation of express or implied error in the sentencing process, an appellate court will not intervene simply because the court might have imposed a different sentence. Rather, an appellate intervention is only warranted where the court is satisfied that a different sentence should have been imposed at the original hearing.[5]
[5] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
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.[6]
[6] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55]; Tang v The Queen [2020] WASCA 194 [105].
Accordingly, an appellant must demonstrate that the sentencing outcome was one that was not open to the sentencing judge or magistrate in the proper exercise of his or her Honour's discretion.[7]
[7] Shi v The State of Western Australia [2020] WASCA 197 [37].
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:[8]
(1)the maximum sentence prescribed by law for the crime;
(2)the standards of sentencing customarily imposed with respect to it;
(3)the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and
(4)the offender's personal circumstances.

Ground 1 of the appeal - Manifest excess as to type of sentence - Whether the term of imprisonment should have been suspended

[8] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].

Pursuant to s 6(4) of the Sentencing Act 1995 (WA), a sentence of imprisonment ought not to be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.
A decision to impose a term of imprisonment or a suspended term of imprisonment involves a two‑step process.
Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
The first step is a sentencing judge or magistrate must determine that a term of imprisonment is called for and not some lesser sentence. The second step requires the court to be satisfied that it is inappropriate to impose a term of suspended imprisonment before a term of imprisonment can be ordered to be served immediately.[9] Thus, each step requires the court to form a requisite opinion.
[9] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85] (Kirby J).
It is not necessary for a sentencing judge or a magistrate to make any express reference to the two‑stage process in coming to a decision not to suspend the terms of imprisonment. It may be desirable, for the sake of clarity, for a sentencing judge or magistrate to explicitly state that she or he has again taken into account all relevant sentencing considerations before rejecting the option of a suspended imprisonment order. However, if it is evident from a consideration of the sentencing remarks as a whole that the two‑stage approach required by the Sentencing Act has been undertaken, no express error emerges.[10]
[10] Brown v The State of Western Australia [2010] WASCA 228 [40] (Mazza J) (Pullin JA & Newnes JA).
The seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors (including the vulnerability of the victim) and any mitigating factors.[11]
[11] Sentencing Act (WA) s 6(2).
It is to be noted that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment up to 5 years. Consequently, suspension may be ordered in cases involving serious offending.[12]
[12] The State of Western Australiav McCarthy [2014] WASCA 210 [57] (Mazza JA) (McLure P & Buss JA agreeing); Golding v Gaunt [2020] WASC 361 [53] (McGrath J).
In Shi v The State of Western Australia, the Court of Appeal recently restated the following well‑known principles in respect of the imposition of a term of imprisonment and the exercise of discretion to suspend the term, in considering an appeal against sentence where the core of the appeal was the contention that the sentencing judge erred by failing to suspend the term of imprisonment, or alternatively the sentence imposed was manifestly excessive in length:[13]
[13] Shi v The State of Western Australia [2020] WASCA 197 [39] ‑ [42] (footnotes omitted); see also Powell v Tickner [2010] WASCA 224 [52] (Buss JA); Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289 [25] ‑ [29] (Steytler J).
It is established that:
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.  The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
4.Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.  The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence.
The rationale for not imposing an immediate term of imprisonment in a given case will vary according to the particular facts and circumstances of the case.  Determining whether a sentencing option is 'not appropriate' involves an evaluative judgement which is broad but not at large; it must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.  In R v Liddington, a case concerning possession of child pornography under the predecessor offence to s 220 of the Code, Steytler J (as his Honour then was) identified as non‑exhaustive relevant factors: (1) the prospect of rehabilitation; (2) the personal deterrence provided by the threat of activation of the suspended sentence; (3) the perceived seriousness and intrinsic character of the particular offence; (4) any element of persistence; (5) general deterrence; (6) factors personal to the offender including mitigating circumstances; (7) the need to demonstrate the condemnation of the community for offences of that kind; and (8) reasons militating in favour of an exercise of mercy.
There will be cases where immediate imprisonment is the only sentencing option which is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation.  The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.
So far as the appellant alleged that his sentence of immediate imprisonment was manifestly excessive as to type, it remains necessary for this court to identify error.  Again, however, error will be inferred where the sentence imposed is unreasonable or plainly unjust.  In HNA v The State of Western Australia this court explained that:
'Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.'

This list of factors is not, of course, exhaustive. See R v Liddington (1997) 18 WAR 394, 406 (Steytler J).
The objective circumstances of the seriousness of the offence in this matter are such that it must be considered a very serious case of its kind. This is because of the sustained, persistent attack on the victim who was merely assisting the appellant's wife, the fact that the appellant's father and the victim's wife were unable, for a period of time, to prevent the appellant from continuing the assault whilst the victim appeared to have lost consciousness, and the serious nature of the victim's injuries.
When regard is had to the maximum penalty for the offence; the very serious nature of the offending; the objective facts and circumstances of the offending, including the victim's vulnerability in being punched, kneed and stomped to the head while effectively defenceless on the ground, it is clear that there was a need to demonstrate the community's condemnation of offences of this kind. These were not the only factors that his Honour took into account. He also took into account the appellant's personal circumstances and his prospects of rehabilitation. For the reasons that follow, plainly no error can be demonstrated in the length of the term of imprisonment.
It is not sufficient to assert that if more weight was given to factors that were personal to the appellant, a suspended sentence order should have been made. Nor is it sufficient to find that a different type of sentence (in this case immediate imprisonment and suspension) could both be reasonably open. Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range in some circumstances, such as in borderline cases, different types of sentence may be reasonably open.[14]
[14] Fogg v The State of Western Australia [2011] WASCA 11 [5], [9] (McLure P) (Mazza JA agreeing); applied in Spirovski v The State of Western Australia [2017] WASCA 230 [54].
Although the appellant's lack of a record of history of violent offending and his willingness to reform by confronting the triggers that have led to his offending are factors that could be said to weigh in favour of a conditional suspension order, this is a case where the seriousness of the circumstances and nature of the offending outweigh the mitigatory factors personal to the offender.
Consequently, the circumstances of the appellant's offending are such that it cannot be found that the sentence of 14 months' immediate imprisonment was unreasonable or plainly unjust.
For these reasons, I am not satisfied that ground 1 of the appeal has any reasonable prospect of success, and leave to appeal on this ground should be refused.

Ground 2 of the appeal - Manifest excess - Whether length of sentence manifestly excessive

In Drage v The State of Western Australia, the Court of Appeal recently restated the principle that there is no tariff for the offence of assault causing bodily harm, aggravated or otherwise.[15]
[15] Drage v The State of Western Australia [2021] WASCA 6 [37].
In assessing the seriousness of an offence of assault causing bodily harm, regard can be had to comparable cases in relation to offences with comparable factual elements and comparable maximum penalties.[16] If a particular sentence is broadly consistent with comparable cases, then no error can arise.
[16] Drage v The State of Western Australia [2021] WASCA 6 [46].
As to whether sentences involving offences of assault causing bodily harm can be said to be comparable, in Spirovski v The State of Western Australia, the Court of Appeal considered a number of cases in which sentences for assault causing bodily harm were reviewed on appeal, and observed:[17]
[17] Spirovski v The State of Western Australia [2017] WASCA 230 [41] ‑ [46] (footnotes omitted).
In Mourish v The State of Western Australia, McLure JA (Steytler P & Wheeler JA agreeing) summarised the sentencing dispositions in various cases relating to the offence of assault occasioning bodily harm, contrary to s 317(1). Where the case was decided before the commencement of the transitional provisions, her Honour converted the sentences to post-transitional sentences and recorded the pre‑transitional sentence in brackets. The relevant cases, as set out by her Honour, were these:
'Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.
Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.
Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.
Hooper v The Queen (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.
Harvey v Ingles (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.
Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.
The State of Western Australia v Anderson [2004] WASCA 157 ‑ the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.
Robinson v Smith [2005] WASC 99 ‑ the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending [12].'
The appeals in Robinson, Poletti, Mical, Harvey and Johnson were from decisions of magistrates who were unable to impose a term of imprisonment exceeding 2 years.  Also, those cases (apart from Robinson) and the cases of Mitchell and Anderson involved pleas of guilty.
In Holden v The State of Western Australia, Wheeler JA said that it is difficult to discern a 'tariff' for the offence of assault occasioning bodily harm because of the great variation in the circumstances in such cases. Her Honour added, however, that:
'[I]n cases which have involved pleas of guilty, a post‑transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].'
We have had regard to numerous sentencing dispositions for offences against s 317(1) of the Code, without circumstances of aggravation, including the relevant dispositions in Mourish; The State of Western Australia v Camilleri; Holden; Wiltshire v Mafi; The State of Western Australia v Cheeseman; Langdon v Kelemete‑Leoli‑McLean; Ali v The State of Western Australia; Clarke v The State of Western Australia [No 2]; Carrick v The State of Western Australia; Allen v The State of Western Australia; and the relevant decisions referred to in those cases.
It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases.  There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
In support of the argument that the sentence imposed on the appellant was manifestly excessive, counsel sought to derive support from two cases involving sentences for assaults causing bodily harm in respect of which shorter terms of imprisonment were imposed at first instance and upheld on appeal.
The first is Harvey v Ingles,[18] which was one of the cases considered in Spirovski v The State of Western Australia. In Harvey v Ingles, the appeal grounds related to whether the length of the sentence was manifestly excessive, and whether the magistrate erred in not making an order for parole. The assault involved a number of punches to the head whilst the complainant was sitting in his vehicle, and when the complainant got out of his vehicle a fight between the appellant and the complainant ensued. The complainant suffered a split lip, chipped teeth, black eye and a swollen jaw. The appellant was 26 years of age at the time of sentence and had a record that included a number of violent offences. He had struggled with a drug addiction, but at the time of sentence had a naltrexone implant and was receiving counselling. He was on parole at the time of the commission of the offence, although not at the time of sentence.
[18] Harvey v Ingles [2004] WASCA 30.
The second case referred to by counsel for the appellant is Shoard v Van Der Zanden.[19] In that matter, the complainant was first punched in the face by a co-offender when the complainant was seated. The complainant stood up and was wrestled to the ground by the co‑offender. The co‑offender continued to punch the complainant, doing so some 8 to 10 times. While the complainant was on the ground, the appellant approached and kicked him three times and stomped on him once. The complainant sustained grazes to his knees, head and face, bruising around his right eye and a blood nose. He received medical treatment at the casino. There was nothing to indicate which of the injuries was caused by the appellant's actions as distinct from those of the co‑offender. The appellant pleaded guilty to the offence and was sentenced to 7 months' immediate imprisonment. The appellant had the benefit of his youth, being 23 years old at the time of the offence. He had also pleaded guilty at the earliest possible opportunity, and had the benefit of prior good character, with no prior record.
[19] Shoard v Van Der Zanden [2013] WASC 163.
Whilst the two cases relied upon by the appellant have some comparable features, these cases are only two matters among other cases which could be said also to have some comparable features for which sentences of immediate imprisonment greater than 14 months have been imposed.
As the authorities make clear, there is no broad range or tariff for sentences for assault causing bodily harm given there is a very wide variety of circumstances that can arise both in relation to the nature of the offence and the circumstances of aggravation,[20] if any.
[20] Tunney v The State of Western Australia [2013] WASCA 286 [29]; Duncan v The State of Western Australia [2018] WASCA 154 [52]; Drage v The State of Western Australia [2021] WASCA 6 [40].
In this matter, it is argued on behalf of the appellant that the sentencing magistrate found relevance, erroneously, in the potential serious consequences arising out of the offending. This submission with respect is misconceived.
In Spirovski v The State of Western Australia, the Court of Appeal dismissed an appeal against a sentence of 18 months' immediate imprisonment imposed on an appellant who was a security officer at the place where the offence occurred, and was convicted after trial of assault causing bodily harm. The assault consisted of a single punch to the complainant's face in a tavern after the complainant had sworn at the appellant, but in circumstances where the complainant was not acting aggressively towards the appellant. The offence was found to be a serious case of its kind given the degree of force that the appellant used and the seriousness of the complainant's injuries. The punch to the complainant's face was a punch with such force that the complainant's nasal bones around his nose broke, and he was knocked to the ground.[21] The unchallenged evidence at trial was that the degree of force necessary to cause the complainant's injuries was considerable, and that he was fortunate not to have been injured more seriously.[22]
[21] Spirovski v The State of Western Australia [2017] WASCA 230.
[22] Spirovski v The State of Western Australia [2017] WASCA 230 [16] ‑ [19].
In Spirovski v The State of Western Australia, the Court of Appeal observed when rejecting the submission that the appellant's offending in that case, whilst objectively serious, was not particularly a serious example of offences of the type of assault causing bodily harm:[23]
The degree of force used by the appellant in striking the complainant and the seriousness of the injuries which the complainant suffered were significant factors in evaluating the objective seriousness of the offence, whether the offending was a serious example of its kind and the appropriateness of a term of immediate imprisonment. The appellant was the aggressor. He used considerable force in striking the complainant. The appellant's action had the potential easily to cause even more serious injuries than the complainant in fact suffered. The absence of some of the aggravating factors that existed in previous cases does not mitigate the seriousness of what the appellant actually did.
[23] Spirovski v The State of Western Australia [2017] WASCA 230 [58].
It is conceded by the appellant that when considering the maximum penalty available to the sentencing magistrate, his Honour's starting point, and thus ultimate disposition, is the maximum penalty, not the jurisdictional limit of the Magistrates Court.[24] Whilst the jurisdictional limit of the sentencing magistrate to sentence an offender for the offence of assault causing bodily harm is 2 years and a fine of $24,000, pursuant to s 317 of the Criminal Code, the maximum penalty for the offence committed without circumstances of aggravation is 5 years' imprisonment.
[24] Stanley v The State of Western Australia [2018] WASCA 229 [46] (footnotes omitted).
In this matter, having regard to the maximum penalty for assault causing bodily harm, the serious facts and circumstances of the offending and all other relevant factors, including the vulnerability of the victim and all mitigating factors, it cannot be found that a sentence of 14 months' imprisonment is not broadly consistent with other comparable cases for this type of offence.
For these reasons, I am not satisfied that the appellant has established that ground 2 of the appeal has a reasonable prospect of success. For this reason, leave to appeal on this ground should be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Smith
30 MARCH 2021