Chegeni Najad v Bruhn
[2014] WASC 73
•11 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CHEGENI NAJAD -v- BRUHN [2014] WASC 73
CORAM: COMMISSIONER SLEIGHT
HEARD: 17 FEBRUARY 2014
DELIVERED : 11 MARCH 2014
FILE NO/S: SJA 1145 of 2013
BETWEEN: FAZEL CHEGENI NAJAD
Appellant
AND
TIM BRUHN
Respondent
FILE NO/S :SJA 1146 of 2013
BETWEEN :REZA JAVANMARD
Appellant
AND
TIM BRUHN
Respondent
FILE NO/S :SJA 1147 of 2013
BETWEEN :BABAK NOZHAD
Appellant
AND
TIM BRUHN
Respondent
FILE NO/S :SJA 1148 of 2013
BETWEEN :MORTEZA DAVISHPOOR
Appellant
AND
TIM BRUHN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
File No :DY 189 of 2013, DY 192 of 2013, DY 193 of 2013, DY 230 of 2013, DY 232 of 2013
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence of immediate imprisonment manifestly excessive - Relevance of period in detention under Migration Act 1958 (Cth)
Legislation:
Criminal Appeals Act 2004 (WA)
Migration Act 1958 (Cth)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Resentenced
Category: B
Representation:
SJA 1145 of 2013
Counsel:
Appellant: Mr S F Rafferty
Respondent: Mr R J Davies
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)
SJA 1146 of 2013
Counsel:
Appellant: Mr C L J Miocevich
Respondent: Mr R J Davies QC
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)
SJA 1147 of 2013
Counsel:
Appellant: Mr S F Rafferty
Respondent: Mr R J Davies QC
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)
SJA 1148 of 2013
Counsel:
Appellant: Mr S F Rafferty
Respondent: Mr R J Davies QC
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Chan v The Queen (1989) 38 A Crim R 337
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lam v The State of Western Australia [2010] WASCA 61
R v Ali [2013] NSWSC 871
R v Zainudin [2005] NTSC 14; (2005) 190 FLR 149
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Urahman v Semrad [2012] NTSC 95
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
COMMISSIONER SLEIGHT:
Background
These appeals, which have been heard together, are against sentences of immediate imprisonment imposed by her Honour Magistrate Barbara Lane arising from an incident at the Curtin Immigration Detention Centre in Derby on 22 December 2011. Each of the appellants was convicted of the offence of unlawfully assaulting Gholam Reza Hussaini occasioning bodily harm. The appellant Babak Nozhad was convicted with a further offence of unlawfully assaulting Karim Azizi occasioning bodily harm.
The learned magistrate sentenced each of the appellants to an immediate term of imprisonment of 6 months and 1 day on the common charge and Mr Babak Nozhad received a further sentence of 2 months cumulative in relation to the additional charge against him.
Initially all appellants had pleaded not guilty to the charges against them. A trial was listed for five days which commenced on 9 September 2013. On the second day of the trial the appellants changed their pleas to guilty and were sentenced by the learned magistrate on 12 December 2013.
On 18 December 2013 his Honour Justice Hall ordered that the appellants' applications for leave to appeal are to be heard at the same time as the appeals.
Grounds of appeal
The grounds of appeal of all appellants are:
1.firstly, that the sentence was manifestly excessive in all the circumstances of the case; and
2.secondly, that the learned magistrate erred in sentencing by failing to take into account the term the appellant spent in detention.
This second ground of appeal was added by leave at the hearing of the appeal. The appellants and the respondent were given leave to file supplementary submissions concerning this second round of appeal, which they have done.
The appellants Mr Fazel Chegeni Najad, Mr Babak Nozhad and Mr Morteza Davishpoor (in SJA 1145, 1147 and 1148 of 2013) had also included in their grounds of appeal a ground that the learned magistrate erred in failing to impose a spent conviction order in light of all the circumstances. However, at the hearing of the appeal, counsel appearing for these three appellants abandoned this ground.
Circumstances of the offences
The circumstances of the offences are as follows:
1.On 22 December 2011 the appellants and the complainants were detainees at the Detention Centre. During the day an altercation occurred between the appellant Mr Babak Nozhad and the complainant Mr Azizi were in an area set aside for telephone calls. The complainant Mr Hussaini witnessed the incident.
2.A short time later, the four appellants were seated at a table in the cafeteria section of the Detention Centre when Mr Hussaini came into the cafeteria and queued to obtain food. What then occurred is recorded on CCTV footage. The learned magistrate described in her sentencing remarks what occurred as follows:
The four co‑accused are in the cafeteria area seated at the same table when Mr Hussaini queues up to obtain food. He is carrying an empty plate. Mr Hussaini has been pointed out and called over to the table occupied by the four co‑accused. There is no sound recording, but Mr Hussaini is shoved and struck hard under the chin and reacts by using his plate. The four co‑accused then very quickly and in concert assault Mr Hussaini. It is fast and quite a furious assault upon him. He's seen injured on the floor (ts 3).
3.It is admitted by the appellant Mr Babak Nozhad that in the course of the joint assault he used a plastic chair twice in an effort to strike Mr Hussaini. The appellant Mr Chegeni Najad was the person who initially shoved Mr Hussaini. Mr Chegeni Najad was then knocked to the ground but later on joined in the common assault on Mr Hussaini. The appellant Mr Davishpoor admitted throwing about five punches at Mr Hussaini, but says only about two of the punches made contact. The appellant Reza Javanmard admitted kicking Mr Hussaini whilst he was on the ground.
4.The learned magistrate in her sentencing remarks concluded that each of the accused should be sentenced as being equal contributors to the assault occasioning bodily harm. The learned magistrate stated in her sentencing remarks as follows:
Each of the four co‑accused are parties to the assault and even though some played a less significant role than others, it is not appropriate to sentence each for their individual acts alone with respect to parity of the sentencing principles. It is obvious from the CCTV footage that this was a group attack. I accept that it was not pre‑meditated or pre‑planned; that it was a spontaneous act on each co‑accused's behalf, But they acted to aid and abet each other in the commission of an assault upon Mr Hussaini and should receive a comparative sentence (ts 3).
This approach has not been challenged on the hearing of this appeal.
5.Mr Hussaini suffered relatively minor injuries. In evidence he described these injuries as being to the side of his eye, some scratches on his neck and some back pain. He made a full recovery.
6.Towards the end of the attack on Mr Hussaini, the appellant Mr Babak Nozhad then attacked Mr Azizi striking a blow to the face of Mr Azizi, breaking his nose.
Personal circumstances of each appellant
Fazel Chegeni Najad
Mr Chegeni Najad is aged approximately 31 years (his exact date of birth is unknown). He arrived in Australia on 12 July 2011 from Afghanistan. He suffered persecution prior to coming to Australia as he is a stateless person and is not recognised as a citizen in Iran. He has no prior record of offending. At the time of the offences he had been in detention for 51 days and at the time of sentencing had spent a total period of 532 days in detention, having been released on community detention on 8 April 2013. Mr Chegeni Najad has been granted refugee status.
Babak Nozhad
Mr Babak Nozhad is aged 28 years. He left Iran in mid‑2011. He was held in detention from 21 July 2011 to 18 March 2013 and then released to reside with his brother on community detention. He has no prior record of offending. At the time of the offences he had been in detention for 153 days and at the time of sentencing had been in detention for 605 days.
The learned magistrate had three documents submitted on behalf of Mr Babak Nozhad in relation to sentencing. The first was a Protection Obligations Evaluation Outcome dated 18 November 2011 prepared by the Department of Immigration and Citizenship. This document detailed Mr Babak Nozhad's past history which included that in 2007 he commenced working with the Ministry of Defence in Iran as an electrician. As an employee of the military he was not allowed to leave his employment and was forced to sign a document stating that he would work for the military until his retirement. Whilst employed in the military he was subject to numerous sexual assaults. He eventually deserted his position of employment and hid in Tehran and later escaped to Australia. He has converted to Christianity. The report finds that Mr Babak Nozhad has a well‑founded fear that if he returns to Iran he will be gaoled and executed for converting to Christianity and escaping from his position with the military. The document concluded with a finding by the author that Mr Babak Nozhad met the definition of 'refugee' within the meaning of the Refugees Convention and relevant provisions of the Migration Act 1958 (Cth) and is someone to whom Australia owes protection obligations. The second document before the learned magistrate was a letter from the Department of Immigration and Citizenship dated 18 November 2011 advising Mr Babak Nozhad that the Department was satisfied Babak Nozhad was a person to whom Australia has protection obligations but advising him that his eligibility for a visa depended upon health, identity, security and character checking processes. The third document before the learned magistrate was a psychologist's report dated 23 November 2013 which detailed the extent of the sexual abuse suffered by Mr Babak Nozhad and concluded that he suffers from post‑traumatic stress disorder and a major depressive disorder. The author of the report concluded that at the time of the offences, due to mental health issues, Mr Babak Nozhad would most probably have been suffering from high anxiety, sensitivity to reminders of past events, irritability, over‑reactivity and poor emotional regulation. The report also dealt with psychological issues that arose from Mr Babak Nozhad being held in detention, particularly after he was found to have met the definition of a 'refugee' within the relevant provisions of the Migration Act.
Morteza Davishpoor
Mr Davishpoor is aged 27. He was born in Iran and arrived in Australia on 12 July 2011. He has been refused refugee status. He holds a diploma in IT and computing. He has no prior record of offending at the time of sentencing. At the time of the offence he had been in detention 153 days and at the time of sentencing had been in detention for 647 days having been released on community detention on 29 April 2013. Mr Davishpoor has not been granted refugee status and has also been unsuccessful in an appeal to the Federal court. His only option now is to appeal to the Minister to obtain a visa.
Reza Javanmard
Mr Javanmard is aged 28. He has no record of prior convictions. At the time of the offence he had been in detention 153 days and at the time of sentencing had been in detention for 872 days, not having been released from detention. Mr Javanmard has been granted refugee status.
Each of the appellants submitted a written character reference from a person from an agency who had dealings with the appellants whilst held in detention.
In relation to the appellants Mr Chegeni Najad, Mr Babak Nozhad and Mr Javanmard, all of whom have refugee status, they have yet to be granted a visa to remain in Australia. Before they can be granted a visa, the Minister for Immigration must consider if they pass the character test under s 501(6) of the Migration Act. If the appellants do not pass the character test, the Minister for Immigration may refused to grant them a visa. Under s 501(6)(aa) of the Migration Act a person does not pass the character test if the person has been convicted of an offence that was committed while the person was in an immigration detention: Urahman v Semrad [2012] NTSC 95 [21].
Sentencing remarks
The learned magistrate provided lengthy sentencing remarks which included observations concerning the circumstances of the offending and the personal circumstances of each appellant. Her Honour found that none of the appellants had reoffended in any like manner stating:
The CCTV footage clearly shows the part each man played. However, as stated earlier, they were acting in concert to assault Mr Hussaini. Now Mr Nojad assaulted Mr Azzizi towards the end of the assault upon Mr Hussaini when he looks through - into the cafeteria door. His nose is broken and he still has a problem with it two years later. Mr Hussaini, however, has recovered from his injuries he received in the assault. Each of the accused had counsel who presented very comprehensive pleas mitigation in very limited times to do so.
I have received and read all the documents they have presented to me in relation to each of the accused. None of the accused has any prior record. Three of the accused are living in the community on community detention orders and one is still in custody. The three men living in the community are not allowed to work, but receive a small amount of money from Centre‑link; roughly between $140 to $150 per week. Their accommodation is paid for (ts 3 ‑ 4).
Later her Honour went on to emphasise the need for a deterrent sentence:
There are important public policy reasons that this should be accepted as a serious offence because of the good order of the detention centre and it places other detainees at risk of serious harm and injury that good order is disturbed (ts 7).
Later her Honour stated as follows:
In relation to the sentencing principles applicable in relation to these matters, these offences call for a general deterrent. These are acts of violence in a detention centre. When this type of conduct occurs in a detention centre, it disturbs the good order and administration of that facility. The need to provide discipline, security and safety is paramount in such a facility (ts 8).
Her Honour concluded that it was appropriate to impose a term of imprisonment. Her Honour considered lesser options but concluded these were inappropriate. In relation to submissions that the appellants ought to be fined her Honour concluded as follows:
I consider that a fine is not appropriate for the serious nature of the offending which, occurred in an immigration detention centre. I consider that such an offence as a very vicious, sustained but short assault upon the complainant is a very serious matter and my options, therefore, are a term of imprisonment, and I consider that there is a need for both general and personal deterrence and that I consider that a term of imprisonment is appropriate (ts 8).
After concluding that a term of imprisonment was appropriate, her Honour then considered the issue of suspending the sentences imposed stating as follows:
These offences, in my opinion, are objectively serious. The accused were in an immigration detention centre at the time of committing the offence. From watching the CCTV footage on numerous occasions, and last night, and this morning in my room today, I consider that they were spontaneous and violent. I accept that each of the accused are remorseful and I have heard that through counsel and through the information that I've received from the various advocates. To what extent that is genuine, I am not sure, because the ramifications of these convictions mean that if they fail the character test, then their immigration status is somewhat in jeopardy.
The court must, therefore, look at the factors relevant to the offenders once it considers that the offending is serious but, in all the circumstances of the case, I must consider not only the seriousness of the offending, but all the matters personal to each of the accused. I have considered that and I have taken a long period of time to go through all the matters, listen to the recording, watched the CCTV footage, and read all the documentation personal and the ones that have been handed on behalf of each of the accused and considered that no suspension of the term should be allowed.
In my opinion, in relation to this type of offending, I consider that a 12 month term of imprisonment is appropriate, but I have significantly reduced to that term for a plea of guilty, even take late in the proceedings and a very significant and heart wrenching personal mitigating factors of each of the accused (ts 9).
Her Honour then proceeded to impose sentences I have earlier indicated in this decision.
General principles
The general principles when dealing with an appeal against sentence are as follows.
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505;. Wilson v The State of Western Australia [2010] WASCA 82.
2.An appeal court will not intervene simply because the appeal court, had it been sentencing the offender at the original hearing, might have imposed a different sentence: House (505).
3.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9(1) and s 9(2).
4.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] ‑ [61], especially [56].
Ground 2
It appears to me that it is appropriate that I deal with ground 2 first. This is because it raises the issue whether the period the appellants spent in the detention centre should be taken into account as a mitigating factor. Whether it is a mitigating factor is also relevant as to the issue of whether the penalty imposed by the learned magistrate was manifestly excessive.
The issue of time spent in detention was raised by counsel who appeared before the learned magistrate on behalf of Mr Javanmard. The following exchange occurred:
Counsel: Your Honour, the time in custody as far as I understand it can't be taken into account, strictly speaking, in terms of time in custody, but my understanding is it can be taken into account in terms of his personal circumstances and the overall mitigation that the hardship of his personal circumstances -
Her Honour: He's not in custody, he is in detention under the Immigration Act. It has got nothing to do with our courts system.
Counsel: Sorry.
Her Honour: So effectively he's not in custody, he's in detention, and it is a different procedure and appeals process separate from the court - this court. So certainly you can say what his circumstances are, but I don't think that it is a matter that I really can take into account that he has had time in a detention centre.
Counsel: Well, we say, your honour, that you can take into account the personal hardship he has suffered by being treated differently his co‑accused, and the - - -
Her Honour: Well, that's a matter for immigration, not to the court. It is a fact that he is still in detention and the other people have been released into the community detention. I accept that, but I can't look behind the reason why they didn't release him (ts 38).
The learned magistrate in her otherwise lengthy sentencing remarks made no express mention indicating that she took into account the lengthy periods the appellants had spent in detention as a mitigatory factor.
The starting point in considering this issue is s 6(1) of the Sentencing Act 1995 (WA) which provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence.
Under s 6(2) the seriousness of the offence must be determined by taking into account:
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
Section 8 of the Sentencing Act provides that mitigating factors are factors which in the opinion of the court decreases the culpability of the offender or decreases the extent to which the offender should be punished.
The question that this ground 2 raises is whether the fact that the appellants had been in detention for lengthy periods of time is a mitigating factor which the learned magistrate ought to have taken into consideration.
In R v Ali [2013] NSWSC 871 Hulme J sentenced five persons who committed the offences was held in a detention centre under the Migration Act. After trial, four offenders were found guilty of participating in a riot and the remaining offender of committing an affray. In sentencing remarks his Honour took into account the period the offenders had been held in detention in two ways:
(i)firstly, that having found that they were otherwise good character, and take into account the length of the time they had spent in detention without reoffending, he concluded they were under likely to reoffend and had good prospects of rehabilitation [100] ‑ [101]; and
(ii)secondly, 'although in an unquantifiable sense' that it is likely that the length of time they had kept been in immigration detention had been exacerbated by the fact that they had pending trial proceedings against them [108].
In R v Zainudin [2005] NTSC 14; (2005) 190 FLR 149 Mildren J sentenced two persons who had committed offences of using a foreign vessels fishing in the Australian Fishing Zone and other related offences. The question arose as to the extent the court should take into account a period of time the offenders had spent in detention. The offenders had initially been held in detention for a period under the Fisheries Management Act 1991 (Cth) which provides that a person can be held for a maximum period of 168 days pending a decision on what charges will be laid. At the expiry of the 168 days the offenders were held for a further period in detention utilising powers under the Migration Act. Mildren J concluded that the offenders were for all practical purposes were being held in circumstances equivalent to being held in remand and considerations of justice required that this period of detention be taken into account [39].
However, Mildren J commented that the provisions concerning backdating of sentences to take into account periods of time spent in custody could not be used to take into account the time spent in a detention centre. His Honour also drew a distinction from the situation of an illegal immigrant held in detention as opposed to the circumstances of the offenders he was dealing with who were held in detention largely equivalent to an arrest process for the commission of a criminal offence. His Honour highlighted that under s 198 of the Migration Act an illegal immigrant has an option to terminate the detention. Section 198 provides that the Minister is to remove the illegal immigrant from Australia as soon as possible if the person no longer seeks asylum in Australia.
In Urahman v Semrad an appeal was lodged against sentences imposed by a magistrate to offences committed by a refugee being held in an immigration detention centre. The appellant was a 33‑year‑old Burmese refugee who had been granted refugee status and was waiting on further security checks. On 12 August 2011 the offender participated in a rooftop protest. After participating in a protest for about five hours he came off the roof and went to a room that he had been allocated. Later a welfare check was conducted by a SERCO employee who went to the room where the offender was sleeping. The offender confronted the SERCO officer and eventually punched him twice to the face. Another detainee joined in the assault. The SERCO officer was taken to hospital and sustained superficial lacerations to his left ear and bruising to his left face. The SERCO officer also suffered a bite wound and bruising to his left upper chest as result of injuries caused by the other detainee.
On 30 October 2011 the appellant engaged in another rooftop protest and in the course of that protest removed a metal pole from an electrical security fence. The damage caused was $3,500. The appellant was charged under the Criminal Code 1995 (Cth).
There was evidence before the court that the appellant was experiencing escalating distress and anxiety due to his experiences in detention.
In relation to the assault matter the maximum penalty was a term of imprisonment of 10 years or a fine not exceeding 120 penalty units. The appellant was sentenced in relation to the assault matter to a term of imprisonment of 3 months but the sentence was suspended forthwith upon the appellant giving security by way of a recognisance in the sum of $1,000 to be a good behaviour for 12 months. In relation to the damage charge the appellant was released on a good behaviour recognisance for 12 months.
The appeal principally concerned the question of whether the learned magistrate ought to have made an order under s 19B (1)of the Crimes Act 1914 (Cth) that no conviction be recorded. Southwood J in allowing the appeal commented that 'immigration detention is notoriously indeterminate and most refugees find this very debilitating' [33].
His Honour went on to conclude that there was a fair inference at the time the appellant committed the offences he was suffering impaired judgment, reasoning and awareness and that his deterioration in function was such that it tended to lessen his culpability for the crimes committed [34].
It is conceded by counsel for the appellants that the time in detention cannot be the subject of backdating or a reduction in sentence on the basis that it is analogous to the deduction that can be made under s 87 of the Sentencing Act that the time spent in custody in respect of an offence prior to sentencing. This is simply on the basis of the detention time was not spent in respect of the offence.
Counsel for the appellants Mr Chegeni Najad, Mr Babak Nozhad and Mr Davishpoor contends, relying upon the decision of R v Ali, that the learned magistrate erred by failing to take in the length of time spent in detention having regard to the 'considerations of justice'. However, as noted above, the conclusion in R v Ali that the period of detention should be taken into account, having regard to the 'considerations of justice', arose in the circumstances of that case because the detention powers were used in such a way to be analogous to a person being arrested for an offence and held in custody in respect of a charge for an offence. The circumstances of the appellants in this matter are quite different in that they have not been held in detention in circumstances akin to being arrested for the commission of the offence for which they were sentenced.
Counsel for the appellants Mr Chegeni Najad, Mr Babak Nozhad and Mr Davishpoor did not point to any particular feature of the circumstances of these appellants which gives rise to an injustice if the period of detention was not taken into account.
Counsel for Mr Javanmard submits that the period in detention spent by. Mr Javanmard can be taken into account in two ways:
1.It is part of the general background.
2.The appellant, Mr Javanmard, spent the additional time in the detention centre because the criminal proceedings against him had not been resolved. It is submitted that this should be taken into account in an 'unquantifiable sense' relying upon the decision in R v Ali.
I am not satisfied that the learned magistrate did not take into account as a part of the background that the appellant Mr Javanmard (or for that matter the other appellants) had been in detention for a lengthy period of time. As a result of the submissions presented and the material before her, her Honour would have been aware of this background. In describing the personal circumstances of each appellant, her Honour made a specific mention of the date that each appellant entered the detention centre (ts 7 ‑ 8). Further, having considered the full sentencing remarks of her Honour, I do not view the exchange with counsel for Mr Javanmard indicates that her Honour did not take into account the period spent in detention as a part of the general background. Rather, I conclude that this exchange simply indicates that her Honour did not view the period in detention as analogous to a period spent in custody in respect to an offence which may be taken into account under s 87 of the Sentencing Act. I believe this is confirmed by a later exchange between counsel for Mr Javanmard and her Honour:
Her Honour: ... but I can't look behind the reason why they didn't release him.
Counsel: I'm not asking your Honour to. What I am suggesting to your Honour is that he has suffered some serious difficulties dealing with the situation, and we say that that the difficulty can amount to mitigation in terms of his personal circumstances. In addition, we ask your Honour to consider is that because of these proceedings he is a Visa application has not been able to be processed.
Her Honour: Yes.
Counsel: And that delay is mitigatory.
As to the submission that Mr Javanmard had remained in detention for an additional period because criminal charges were pending against him there was no evidence before the learned magistrate as to the reason why Mr Javanmard was not released from detention. It would appear to be something more involved as the other three appellants were released into community detention notwithstanding the charges against them. Her Honour did accept that as result of the charges, Mr Javanmard's application for a visa had been delayed and this was taken into account (ts 8).
In my opinion the period spent in detention can be taken into account in a number of ways:
1.Firstly, as a part of the general background to assess the circumstances of the offence. I am satisfied the learned magistrate did take this general background into account.
2.Secondly, as a mitigating factor if there is evidence of mental deterioration or vulnerability whilst held in detention (as in Urahman v Semrad). No evidence of mental deterioration or vulnerability was present on behalf of the appellants except Mr Babak Nozhad. Evidence was presented on behalf of Mr Babak Nozhad that he was suffering from traumatic stress disorder and a major depressive disorder. However I am satisfied the learned magistrate took this into account. She expressly took into account the 'very significant and heart wrenching personal mitigating factors of each of the accused' (ts 9).
I grant leave to appeal in relation to ground 2 but I conclude that the ground of appeal has not been made out for the reasons given above. Accordingly the appeal on ground 2 is dismissed.
Ground 1
In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342; Lam v The State of Western Australia [2010] WASCA 61 [9] (McLure P, with whom Owen JA & Jenkins J agreed).
In relation to an appeal based upon manifestly excessive or inadequate sentence, the High Court in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 stated:
As was said in Dinsdale v The Queen, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that 'the sentence imposed in these matters is so far outside the range of sentences available that there must have been error.
The Court of Criminal Appeal also said that 'manifest error is fundamentally intuitive'. That is not right. No doubt, as the Court went on to say, manifest error 'arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it'. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence [59] ‑ [60].
The maximum penalty for the offence of assault occasioning bodily harm is 5 years' imprisonment. The jurisdictional limit in the Magistrates Court for this offence is 2 years' imprisonment and a fine of $24,000.
It is difficult to discern any 'tariff' or usual sentencing range for assault occasioning bodily harm. The range of sentences commonly imposed for the offence of assault occasioning bodily harm have been reviewed in a number of Court of Appeal decisions. In Wiltshire v Mafi [2010] WASCA 111 the court commented as follows:
Both parties agree that the appropriate range of sentences for assault occasioning bodily harm was identified by Wheeler JA in Holden v the State of Western Australia [2009] WASCA 50 [43] ‑ [45]. Her Honour concluded [43] that under the post‑transitional provisions, the range included sentences from 6 months' suspended imprisonment to 2 years' immediate imprisonment. Importantly, Wheeler JA also held that this range was appropriate in relation to sentences imposed by magistrates where the jurisdictional limit of 2 years imprisonment applied.
The range of sentences imposed for this offence was also considered in the State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR129 [166] ‑ [173], Mourish [v The State of Western Australia [2006] WASCA 257] [12] and Kilner v The Queen [1999] WASCA 189 [22]‑[27]. The review of sentences in these cases suggest that a sentence of 12 months suspended imprisonment is usually given for assaults less serious than the assault which occurred here [42] ‑ [43].
The case of Wiltshire v Mafi involved a serious sustained attack by the offender, including punching and kicking of the victim. The victim suffered a lacerated spleen and a lacerated kidney. A sentence of 16 months imposed by the magistrate was upheld by the Court of Appeal as appropriate. In my opinion the passage quoted above does not mean that any assault less serious than the circumstances in Wiltshire v Mafi generally attracts a suspended term of imprisonment but rather that cases where suspended terms of imprisonment have been imposed have involved less serious assaults than in Wiltshire v Mafi.
The use of so‑called comparable cases has to be done cautiously. This is for a number of reasons:
1.Firstly, the factual matrix of the offending behaviour and the personal circumstances of individual offenders vary so enormously that the use of so‑called comparable cases can detract from giving appropriate weight to the individual circumstances before the sentencing court;
2.Secondly, in Western Australia, generally comparable cases are only taken from reported decisions of the Court of Appeal. This can be deceptive because the Court of Appeal deals with a limited number of cases compared with original sentencing courts. The range of penalties imposed by the original sentencing court, because of the much greater range of circumstances which come before it, can suggest a different range of sentencing than cases in the Court of Appeal. In my experience this is evident for offences such as burglary and armed robbery; and
3.Finally, it must be taken into account that the range of sentences suggested by decisions of the Court of Appeal provide only a rough guide as to what might be the appropriate sentence. In the recent High Court decision of Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 [37] the plurality decision of French CJ, Hayne, Kiefel and Bell JJ emphasised that the bare statement of a range tells the sentencing judge nothing of the conclusions or assumptions upon which the range depends. The decision went on to state that:
As the plurality pointed out in Hili v The Queen at [54] in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of permissible discretion. A history stands as the yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect [41].
In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 606 the plurality stated:
Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were [59].
In my opinion a unifying principle that emerges in relation to cases concerning the sentences for assault occasioning bodily harm is that the more serious the injury the more likely it is that the offender will receive an immediate term of imprisonment. Cases involving less serious injuries are more likely to attract a penalty less than immediate imprisonment. This I believe is consistent with the decision in Wiltshire v Mafi.
None of the comparable cases in the reviews referred to in Wiltshire v Mafi involved an assault occasioning bodily harm in the circumstances of a detention centre. It was the commission of the offences in a detention centre which was critical to the learned magistrate's decision to impose immediate terms of imprisonment. This is because there are important considerations of personal and general deterrence. As noted by the learned magistrate and also in the decisions of R v Ali and Urahman v Semrad there is a need to maintain law and order in a detention centre in order to protect detainees, security staff and property.
In relation to the assault of Mr Hussaini there was also the aggravating feature that the offence was committed in the form of a joint attack on one single person. However, these aggravating features must not blind proper and adequate consideration of other objective features of the offending and the mitigating factors in favour of each appellant. The offence, as found by the learned magistrate, was spontaneous. The attack lasted for a very short time, about one minute. The victim was not seriously injured and has made a full recovery from his injuries. No property was damaged. No staff were attacked. Order was quickly restored. Each of the appellants has no prior convictions and is of good character (ts 7).
I conclude that, taking all factors into account, in relation to each of the appellants Mr Chegeni Najad, Mr Davishpoor and Mr Javanmard, that the sentence of immediate imprisonment was manifestly excessive. I conclude that a suspended sentence was a sentencing option open to the learned magistrate and that the learned magistrate erred in failing to impose a suspended sentence. I conclude in re‑sentencing that a term of imprisonment is warranted given the need for general deterrence but that it should be suspended. Accordingly I will give leave to appeal, allow the appeal and alter the sentence of each of them by making each sentence of 6 months and 1 day suspended for a period of 9 months.
In relation to the appellant Mr Babak Nozhad, although he was convicted of an additional offence of assault occasioning bodily harm, and although the victim suffered more significant injuries in the form of a broken nose, it was again an assault that was spontaneous. A single blow was struck. No weapon was used. Like the other appellants, Mr Babak Nozhad had no prior history of offending and was a good character. There was no attack on staff and no property damage.
There was substantial material concerning Mr Babak Nozhad's background and mental state compared with the other appellants. As detailed earlier in this decision he had a very traumatic background in Iran and at the time of the offence was suffering from post‑traumatic stress disorder and major depressive disorder. In my opinion these disorders reduced his culpability and also suggest that any immediate term of imprisonment is likely to be more difficult for him. Although general deterrence remains an important consideration, taking into account these additional factors, which are not present in the background of the other appellants, I conclude that the sentences of immediate imprisonment imposed by the learned magistrate were manifestly excessive. I believe the sentences ought to have been suspended. Accordingly, I will give leave to appeal and allow the appeal. I will resentence Mr Babak Nozhad by imposing the same terms of imprisonment on each charge as imposed by the learned magistrate, the sentences will be cumulative and each sentence will be suspended for a period of 12 months.
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