Chidoti v Terrey
[2018] WASC 332
•26 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CHIDOTI -v- TERREY [2018] WASC 332
CORAM: SMITH J
HEARD: 26 OCTOBER 2018
DELIVERED : 26 OCTOBER 2018
FILE NO/S: SJA 1094 of 2018
BETWEEN: WONDER CHIDOTI
Appellant
AND
BRADLEY TERREY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V EDWARDS
File Number : RO 2746 of 2018
Catchwords:
Criminal law - Appeal against conviction - Aggravated assault occasioning bodily harm - Domestic violence - Circumstances in which a plea of guilty will be set aside on appeal considered - Application to adduce additional evidence refused - No evidence of self‑defence disclosed in affidavit
Appeal against sentence of immediate imprisonment - Whether sentence manifestly excessive - Whether term should have been suspended - Sentencing principles considered - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 8(2), s 40(1)(e)
Criminal Code (WA), s 248(2), s 248(4), s 317(1)(a)
Sentencing Act 1995 (WA), s 6(4), s 39(3)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr N Ngwenya |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Norman & Co Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bropho v Hall [2015] WASC 50
Brown v The State of Western Australia [2010] WASCA 228
DC v The State of Western Australia [2014] WASCA 121
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Duncan v The State of Western Australia [2018] WASCA 154
ENR v The State of Western Australia [2018] WASCA 9
Gibson v The State of Western Australia [2017] WASCA 141
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Jneid v The State of Western Australia [2018] WASCA 67
Liyanage v The State of Western Australia [2017] WASCA 112
Mason v The State of Western Australia [2018] WASCA 43
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Samuel v The State of Western Australia [2004] WASCA 154
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Valerio v The State of Western Australia [No 2] [2018] WASCA 158
Wadeson v The State of Western Australia [2018] WASCA 171
Wilson v The State of Western Australia [2010] WASCA 82
SMITH J:
(This judgment was delivered extemporaneously on 26 October 2018 and has been edited from the transcript).
The appeal
On 15 May 2018, the appellant pleaded guilty and was convicted in the Rockingham Magistrates Court of one count of aggravated assault occasioning bodily harm contrary to s 317(1)(a) of the Criminal Code. The circumstances of aggravation were that the appellant was in a family relationship with the victim.
On 27 June 2018, the appellant was sentenced to 9 months' immediate imprisonment with eligibility for parole.
The appellant seeks leave to appeal against conviction and sentence. The appellant also seeks to admit additional evidence in the appeal.
On 23 July 2018, McGrath J granted the appellant conditional bail. On 10 August 2018, McGrath J ordered that the application for leave to appeal be heard with the appeal.
The issues raised in the grounds of appeal are as follows:
(a)the conviction should be set aside as a miscarriage of justice has occurred because the appellant's plea of guilty was entered in circumstances where:
(i)the appellant was unable to provide instructions to his counsel without the benefit of an interpreter and as such was unable to instruct counsel that he did not agree with the statement of facts read by the prosecutor and misunderstood the legal advice given to him which resulted in the appellant being sentenced on an incorrect factual basis (grounds 4, 5 and 7);
(ii)the appellant had insufficient time to meet with and instruct counsel prior to the commencement of the sentencing process (ground 6);
(iii)the additional (new and/or fresh) evidence of the victim provides evidence that the appellant was acting in self‑defence (ground 8);
(b)(in the alternative):
(i)the sentence of immediate imprisonment was manifestly excessive (ground 1);
(ii)the magistrate impliedly erred in failing to suspend the term of imprisonment (grounds 2, 9 and 10).
The appellant requires leave to appeal on each of the grounds of appeal. Leave should be granted if a ground has reasonable prospects of success.
Legal principles - appeal against conviction - miscarriage of justice
By s 8(1) and (2) of the Criminal Appeals Act 2004 (WA), an appeal may be made against a decision made after a plea of guilty or an admission of the truth of any matter, on one or more of the following grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
An appeal against conviction after a plea of guilty will only succeed if the appellant satisfies the court that a miscarriage of justice has occurred.[1]
[1] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).
In Snook v The State of Western Australia [No 2], Hall J explained there are three well recognised grounds for allowing a change of plea. These are:[2]
[2] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] ‑ [107] (Buss JA & Mazza JA agreed); see also Gibson v The State of Western Australia [2017] WASCA 141 [54], [157].
(1)where the applicant did not understand the charge or did not intend to plead guilty;
(2)where on the admitted facts the applicant could not in law be guilty of the offence; and
(3)where the plea of guilty has been obtained by inducement, fraud or intimidation.
See Borsa v The Queen [2003] WASCA 254 and Webster v The Queen [2015] WASCA 20.
These are not however the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice. Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.
Attempts to change a plea are approached by the courts with caution bordering on circumspection: Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment. Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty: Meissner v The Queen. The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.
An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].
If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.
The appellant's family background and education
Prior to considering the matters raised before the Magistrates Court and the conduct of the proceedings it is important to have regard to the appellant's family background and education.
A pre‑sentence report before the sentencing magistrate disclosed the following relevant facts.
The appellant is of African origin. At the time of the offence the appellant was 40 years old. He was born in Zimbabwe and English is his second language. He completed the equivalent of year 12 secondary education in Zimbabwe and obtained a qualification in mechanical fitting. He moved to South Africa in 2003 and came to Australia as a visitor in 2009 and was granted permanent residency on a refugee grant. His mother and two siblings reside in the eastern states and one brother resides in Western Australia.
The appellant has had stable employment as a mechanical fitter in Australia. He has been employed by his current employer, a mining company in the Northern Territory, since 2015. His employment requires him to fly in and out of the Northern Territory from Perth on a four week on one week off roster.
The appellant supports two families, his ex‑wife and three children and his current wife (the victim) and two children. He also has another child who resides with her mother in Canberra. The appellant earns approximately $12,000 (net) a month and pays approximately $8,000 (a month) towards two mortgages and child maintenance.
The proceedings before the Magistrates Court - did the appellant appear to have any difficulties in communicating adequately in oral English? (grounds 4, 5 and 7)
The appellant first appeared before the Magistrates Court on 15 May 2018. He was represented by counsel from a private legal firm who informed the presiding magistrate, Magistrate Atkins, that the appellant intended to enter a plea of guilty to the charge. Her Honour read the charge to the appellant before the following exchange:[3]
HER HONOUR: Do you understand that charge?
ACCUSED: Yes, ma'am.
HER HONOUR: Do you plead guilty or not guilty?
ACCUSED: I plead guilty.
[3] ts 2, 15 May 2018.
The appellant's counsel requested that a pre‑sentence report be ordered.
Her Honour asked counsel for the appellant whether the prosecution statement of material facts was accepted by the appellant and was informed that they were.[4]
[4] ts 2, 15 May 2018.
Her Honour then remanded the appellant to the Domestic Violence Court on 27 June 2018 and ordered a pre‑sentence report.
The pre‑sentence report was subsequently prepared by a community corrections officer on 22 June 2018. In preparing the report, the author interviewed the appellant by telephone on 11 June 2018 and in person on 22 June 2018.
In preparing the report the author gathered information from not only the interviews with the appellant, but from departmental records, police statements of material facts, court history and a telephone conversation from a counselling service attended by the appellant, Relationships Australia.
Importantly, there is nothing in the pre‑sentence report that indicates the appellant has, or has had any difficulty, in adequately communicating orally in English or was unable to understand the factual basis alleged against him in respect of the charge of assault occasioning bodily harm.
To the contrary, the author states in the report that the appellant accepted his criminal culpability, but he also commented that the police facts described his offending in 'a little bit exaggerated' way.
On 27 June 2018, the appellant appeared before sentencing Magistrate Edwards. The appellant was represented by different counsel who informed the magistrate that she had gone through the pre‑sentence report with the appellant and the matter could proceed to sentence.
When the transcript of sentencing submissions is examined, it is patently clear that counsel who appeared on behalf of the appellant on 27 June 2018 did not appear to have any difficulty communicating with or obtaining instructions from the appellant.
The prosecutor informed her Honour that the appellant had a record and read the following facts to the court:[5]
At 9.40 in the evening on Monday, 17 April 2018 [the appellant] arrived at his house in Wellard … The [appellant's wife] was sitting on the couch in the theatre room watching television. The [appellant] walked to the entrance to the theatre room and began an argument with [his wife]. He walked towards her and was standing over her whilst arguing. The argument continued and the [appellant] turned towards the television, kicked it, pulled it onto the ground and started jumping on it.
The [appellant's wife] stood up and tried to leave the theatre room. The [appellant] grabbed [her] by the right arm and pulled her back to the couch. The [appellant] raised his left arm and cocked it back. He then slapped [her] once with an open hand to the right side of her face. The slap caused [his wife] to partially lose consciousness, fall to the couch, not see properly and have pain on the right side of her jaw. [She] began crying, stood up and tried to leave the theatre room.
The [appellant] blocked [his wife] with his body from leaving the theatre room. [She] tried to get past the [appellant]. The [appellant] pushed [his wife] backwards, pushed and kicked her with his left foot, aiming at her stomach … The [appellant] managed to slightly avoid the kick and it caused it to connect with [her] right hip, causing pain. [She] tried to get past the [appellant] again. The [appellant] pushed [her] back and kicked her once more with the same result.
[His wife] tried to get past the [appellant] again, and the [appellant] pushed [her] back and push kicked her in the stomach. [She] managed to catch the kick and push the [appellant] backwards out of the theatre room whilst he was hopping on one foot. The [appellant] reached forward and grabbed [her] by the head, causing her to let go of his leg. The [appellant] then placed [her] in a head lock under his left armpit and began choking [her]. [His wife] managed to get herself free, ran down the hallway towards the front door.
The [appellant] followed [his wife], kicking out at her buttock and lower back pain region with his right foot. Four of the kicks connected, causing [her] pain. [She] unlocked and began opening the front door. The [appellant] forced the door shut, wrapped his left arm around [her] neck, choking her. He pulled [her] backwards down the hallway and tried to push her into the master bedroom. [She] braced herself against the door frame with both of her arms.
The [appellant] let go of [his wife]. [She] ran towards the garage door … the [appellant] followed [her] and kicked her twice to the buttocks with his right foot, causing pain. The [appellant] then rushed past [her] and blocked her from accessing the door. [She] turned around and ran to the front door. The [appellant] followed [her] and kicked her twice to the buttocks with his right foot, causing pain. [She] then grabbed the front door handle with her left hand, turned it and opened the door.
The [appellant] kept trying to grab [his wife] and pull her back inside. She kept wriggling and was slowly opening the door wider and making her way outside. The door was about three-quarters open and perpendicular to [her] body. The [appellant] grabbed [her] head and thrust it forward once into the corner of the door, causing [her] forehead and right eyebrow to connect with it. That caused immediate pain, swelling and two lacerations to [her] right eyebrow and forehead.
[His wife] got outside, ran to a different address and received assistance from the occupants and requested they call police. At 10.25 in the evening, police attended and arrested the [appellant]. [The appellant] was conveyed to the Rockingham Police Station, where he refused [to participate in] a record of interview.
[5] ts 2 ‑ 3, 27 June 2018.
The prosecutor tendered photographs which showed injuries to the appellant's wife.
Her Honour then turned to the appellant's counsel and asked whether the facts as read by the prosecutor were accepted by the appellant.
Counsel for the appellant informed her Honour that the facts were accepted and went on to comprehensively make a plea of mitigation. In doing so, counsel addressed the matters in the pre‑sentence report. During the course of submissions, counsel referred to questions she had asked of the appellant about matters stated in the pre‑sentence report. In her submissions, counsel gave explanations as to why the appellant had made particular statements to the author of the pre‑sentence report. In particular, counsel referred to the pre‑sentence report where the appellant had described the offending as 'a little bit exaggerated' and stated:[6]
I questioned Mr Chidoti as to what he meant by that and what he specifically pointed to was in the statement of material facts where it says that he was trying to aim at the stomach. Mr Chidoti said simply, 'I wasn't trying to aim at the stomach.'
And that was the only matter that he raised that was in issue in the facts in terms of he feels that they were trying to say that he was aiming specifically for the stomach for a particular reason. And he said that wasn't the case.
[6] ts 4, 27 June 2018.
Counsel stated that she had also asked the appellant to explain further about what he had said to the author of the pre‑sentence report about his wife's unreasonable behaviour and counsel went on to give a reasonably comprehensive explanation about what the appellant had told her about the African culture of visits to a witch doctor prior to marriage and a dowry payment to her father and how these matters had affected his wife.
Counsel challenged a statement made by the author of the pre‑sentence report which was that whilst the appellant communicated remorse and regret for his behaviour, he appeared to lack insight into his offending and apportioned blame on the victim which hindered the expression of empathy towards her. Counsel stated that the appellant:[7]
… has already self‑referred after this … he has shown remorse in that he wants to deal with it, take full responsibility of what has happened. In terms of the comments that were made that he may be minimised, I question whether that was possibly difficulty in Mr Chidoti's - English being his second language because he was ‑ he didn't show that at all to me and was able to explain himself well.
[7] ts 7, 27 June 2018.
When regard is had to the statements made by counsel for the appellant at the sentencing hearing before the sentencing magistrate it is plain that, not only did counsel not indicate any difficulty in obtaining instructions or that an interpreter for the appellant was required to obtain such instructions, counsel did not have difficulty in obtaining instructions from the appellant.
It also appears from the documents provided to this court from the Magistrates Court that the sentencing magistrate had before her when sentencing the appellant, two references attesting to the character of the appellant. One of the references is a reference contained in an email (a copy of which does not bear a date) from a Keiran Vincent, the appellant's supervisor. In the email, Mr Vincent makes statements, if accepted, that raise a clear inference that the appellant is able to understand and clearly communicate in oral English. Mr Vincent in the email stated that the appellant:
…works in a position that demands he has a great deal of patience and the requirement for clear communication and clear directions that are needed to be given and completely understood. It also requires him to work with different work scopes, work groups and trades from different companies and liaise directly with Engineers, Vendors representing their companies and equipment, EPCM management and the client's representatives, under differing levels of expectation and time limits.
I have only had glowing reports back concerning all the dealings he has had with all these differing work groups and representatives, no matter the situation or pressure he has been required to work under.
As no material was before the court upon which ground 6 could be said to be properly raised, ground 6 must necessarily fail.
When regard is had to all of these matters, grounds 4, 5, and 7 have no reasonable prospect of success.
Does a miscarriage of justice arise because of additional evidence that would suggest on the balance of probabilities the appellant may have acted in self‑defence?
Pursuant to s 40(1)(e) of the Criminal Appeals Act, an appeal court may admit any other evidence.
The discretionary power conferred by s 40(1)(e) to admit other evidence is not expressly limited or confined.[8] The well‑known common law principles which touch upon the distinction between new and fresh evidence, while not necessarily determinative of the manner of the exercise of the statutory discretion, are weighty, to the point where it would be a rare case in which the exercise of the statutory discretion produces a different outcome to that produced by the common law principles.[9]
[8] Gibson v The State of Western Australia [2017] WASCA 141 [56].
[9] Valerio v The State of Western Australia [No 2] [2018] WASCA 158 [206] (Mazza & Mitchell JJA).
However, unless the new or fresh evidence establishes the appellant is innocent or raises such a doubt that this court is satisfied the appellant should not have been convicted, the appeal will not be allowed on the basis of the new or fresh evidence.[10]
[10] Valerio v The State of Western Australia [No 2] [2018] WASCA 158 [207] (Mazza & Mitchell JJA); Gibson v The State of Western Australia [2017] WASCA 141 [56] ‑ [64].
The additional evidence relied upon by the appellant is an affidavit sworn by his wife on 27 September 2018. In her affidavit she states:
1.On the 16th of April 2018, I pushed Wonder in the chest. I was trying to stop him yelling and listen to what I was saying. I did not expect him to physically react the way that he did. He reacted forceful pushing me away and before I knew it we were both pushing and shoving and yelling at each other.
2.In my statement to the police I omitted to mention that we both were involved in a fight and in frustration that Wonder got an upper hand, I later called the police. If I hadn't pushed him in the first place maybe this whole thing wouldn't have happened.
3.I am a bit concerned about some of the things the police said in court that were subsequently in the press, I did not necessarily partially lose consciousness but rather felt great pain.
4.Wonder did not necessarily choke me but rather he was holding me tight, maybe to control the situation, whilst on the other hand I was pushing myself against his arms. Having said all that, the account of what occurred as presented in court was inaccurate.
5.Wonder and I both didn't exercise a restraint and I thought and felt it's my duty to set the record straight as to what actually happened that night.
As the respondent points out, the statements made in the affidavit are vague and equivocal and do not materially contradict the facts stated by the prosecutor which disclose a protracted and sustained physical assault by the appellant on his wife. At their highest, the statements do no more than attempt to minimise the gravity of the injuries sustained by the victim.
In any event, the additional evidence does not provide any evidence upon which it could properly be said that a defence of self‑defence is raised.
Section 248(2) of the Criminal Code provides that a harmful act done by a person is lawful if the act is done in self‑defence under s 248(4). Section 248(4) provides:
(4)A person's harmful act is done in self‑defence if‑
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
An accused bears the evidential onus of adducing or pointing to prosecution evidence, on which a jury (or a court of summary jurisdiction) acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting in self‑defence.[11]
[11] Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5].
In Goodwyn v The State of Western Australia, Buss JA explained the elements and evidential burden raised in s 248(4) as follows:[12]
So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
If the accused satisfies the evidential onus in relation to self‑defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.
[12] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95] ‑ [96] (Martin CJ agreeing); applied in Liyanage v The State of Western Australia [2017] WASCA 112 [69].
In this matter, there is nothing in the facts stated by the prosecution, when read with the affidavit of the appellant's wife, that could satisfy the evidential burden in respect of any of the four elements of self‑defence.
For these reasons, ground 8 has no reasonable prospect of success and leave to admit the additional evidence should be refused.
Appeal against sentence - general principles
The principles relevant to an appeal against sentence are well established. In Wilson v The State of Western Australia, the Court of Appeal summarised these principles as follows:[13]
[13] Wilson v The State of Western Australia [2010] WASCA 82 [2].
The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.
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) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.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 s 27(1) and (2).
5.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].
Did the sentencing magistrate expressly consider the sentencing option of suspending a term of imprisonment?
Ground 2 alleges an express error by the sentencing magistrate in failing to positively consider the option of suspending the term of imprisonment. The assertion is without merit. Her Honour clearly and expressly did so.
Counsel for the appellant:
(a)referred to the fact that the appellant had previously been convicted of an unlawful assault in circumstances of aggravation against the victim;
(b)conceded the offence (for which the appellant was now convicted) was serious, protracted and the victim had received serious injuries to her face; and
(c)made a submission to the sentencing magistrate that her Honour consider a non‑custodial term with conditions[14] but conceded that 'the first port of call for considering a sentence is one of imprisonment' and submitted that the court could suspend the imprisonment with conditions, or impose a pre‑sentence order.[15]
[14] ts 8, 27 June 2016.
[15] ts 7, 27 June 2016.
After stating the facts that were alleged and accepted by the appellant, her Honour found:[16]
As the prosecutor quite rightly said, it was a sustained attack whereby [the victim] was persistently prevented by you from escaping from the assault by you upon her. As an assault occasioning bodily harm, in my view, it is very much at the upper end. It has been submitted to me that if I were to consider a term of imprisonment that I ought to either suspend it or conditionally suspend it.
I've given consideration to the material that's in the pre‑sentence report. I'm also conscious of the fact that you are supporting children from a prior marriage, that there are significant financial issues that are involved with two mortgages and, of course, the support of those children. I also acknowledge that you pleaded guilty to this offence on the very first opportunity and that you have sought counselling of your own volition to try and address the reasons for your offending behaviour.
Having considered the facts that have been alleged and accepted by you and having considered all of the matters personal to you, Mr Chidoti, I am of the view that only an immediate term of imprisonment can be imposed because of the serious and persistent assault upon [the victim]. So there will be an immediate term, and the term will be nine months. That takes into account the plea of guilty at the earliest opportunity, and I have afforded you a 25 per cent discount on the term as a result of that plea of guilty. So it's nine months with eligibility for parole.
[16] ts 9 ‑ 10, 27 June 2016.
For these reasons, ground 2 has no reasonable prospect of success as the sentencing magistrate clearly referred to and considered the option of suspending the term of imprisonment.
Is express error demonstrated in the sentencing process?
The appellant asserts in written submissions filed in the appeal that the sentencing magistrate erred by failing to carry out a 'two‑stage process'. In particular, it is argued that after determining to impose a term of imprisonment, the sentencing magistrate failed to consider the second step by not imposing a lesser sentencing option by suspending the term of imprisonment.
Section 6(4) of the Sentencing Act 1995 (WA) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that:
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
The effect of s 39(3) of the Sentencing Act is that a court must not use a sentencing option of suspended imprisonment, conditional suspended imprisonment or sentence of immediate imprisonment unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use any of the options listed before that option. Consequently, suspended imprisonment or conditional suspended imprisonment are only to be available as sentencing options where the court has concluded that a sentence to a term of imprisonment is warranted and the term imposed is not more than five years.[17]
[17] Mason v The State of Western Australia [2018] WASCA 43 [49] ‑ [53].
It is a correct statement of the law that a decision to suspend a sentence requires two steps. The first is a determination by the sentencing judge or magistrate that a term of imprisonment is called for. The second is a determination that it is not appropriate that the term of imprisonment should be suspended for a period of time.[18] Thus, each step requires the court to form a requisite opinion.
[18] 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 sentencer 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.[19]
[19] Brown v The State of Western Australia [2010] WASCA 228 [40] (Mazza J, Pullin JA & Newnes JA agreeing).
For reasons that follow, it is clear that when her Honour rejected the option of a suspended imprisonment order that she took into consideration all relevant sentencing considerations before rejecting the option of suspending the term of imprisonment. In these circumstances, ground 2 has no reasonable prospect of success.
Sentencing discretion - suspended or immediate imprisonment - general principles
The court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment.
The principles governing the exercise of discretion in determining whether or not to exercise the power to suspend a term of imprisonment was set out by the Court of Appeal in DKN v The State of Western Australia as follows:[20]
… the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
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. Even if a term of 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.
In Fogg v The State of Western Australia, McLure P explained the approach to an appeal against the refusal to suspend a term of imprisonment on the ground of implied error. A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. Whether the suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision‑maker. In borderline cases, different types of sentence may be reasonably open. In such a case, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.
Thus, in the absence of express error, it is for the appellant to satisfy the court that the primary sentencing court's judgment that suspension was not appropriate was a conclusion that was not reasonably open.
Section 76(3)(b) of the Sentencing Act provides that suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. Similarly, s 81(3)(b) provides that conditional suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended.
[20] DKN v The State of Western Australia [2018] WASCA 87 [36] ‑ [40]; see also ENR v The State of Western Australia [2018] WASCA 9 [12].
Where as in this matter the appellant complains of an implied error that the sentence was manifestly excessive, the court must view the sentence in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender.[21]
[21] DC v The State of Western Australia [2014] WASCA 121 [39] ‑ [41].
Where it is alleged that the imposition of an immediate term of imprisonment was manifestly excessive, the question to be determined is whether it was open to the sentencing judge or magistrate to form the view that the only appropriate disposition was the imposition of an immediate term of imprisonment. Alternatively, was it open to the judge or sentencing magistrate to find that the less serious sentencing option of a suspended term was not appropriate?
If in the circumstances of a case where two or more sentencing options may be realistically open, a judge or sentencing magistrate should necessarily make reference to why the less severe option is not appropriate.[22]
[22] Samuel v The State of Western Australia [2004] WASCA 154 [34] (Roberts‑Smith J, Malcolm CJ & Murray J agreeing).
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation or mercy.[23] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.[24]
[23] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J) [26] (Gaudron & Gummow JJ) [84] (Kirby J); ENR v The State of Western Australia [2018] WASCA 9 [11]; applied in Wadeson v The State of Western Australia [2018] WASCA 171 [51].
[24] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86]; ENR v The State of Western Australia [2018] WASCA 9 [12]; applied in Wadeson v The State of Western Australia [2018] WASCA 171 [51].
Grounds 1, 3, 9, 10 and 11, in effect, complain of an implied error that the sentence was manifestly excessive, having regard to the appellant's plea of guilty, remorse, limited criminal history, good prospects of rehabilitation (as he was undergoing counselling and treatment for mental health issues) and admissions to police. In respect to the last matter, it is not clear why there is a reference to admissions to police made in the grounds of appeal as the appellant made no admissions to the police when apprehended for the offence.
Reference has been made to mental health issues but there was no material before the sentencing magistrate that the appellant is or was being treated for any mental health issues. At the hearing of the appeal counsel for the appellant tendered (without objection) a note dated 24 October 2018 written by a clinical psychologist, Tara Stowe, from Think Therapy, stating that the appellant had attended appointments on 9 and 20 September 2018 and 24 October 2018. However, no information is contained in the note about the purpose of the appointments and what services were provided by Ms Stowe.
Ground 11 complains of insufficient weight being given to various mitigating factors. In the absence of a failure to exercise a discretion conferred on the judge or sentencing magistrate, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.[25]
[25] Jneid v The State of Western Australia [2018] WASCA 67 [98].
The appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a different manner.
The maximum penalty for the offence of aggravated assault occasioning bodily harm is imprisonment for 7 years, or if dealt with summarily, imprisonment for 3 years and a fine of $36,000.[26]
[26] Criminal Code (WA) s 317(1)(a).
In circumstances where an assault occasioning bodily harm is that the aggravating circumstance is that the assault is by a man and a woman in a domestic relationship, general deterrence is raised as an important sentencing consideration.[27]
[27] Duncan v The State of Western Australia [2018] WASCA 154 [40].
In Bropho v Hall, Mitchell J said:[28]
The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.
[28] Bropho v Hall [2015] WASC 50 [16]; cited with approval in Duncan v The State of Western Australia [2018] WASCA 154 [40].
In Duncan v The State of Western Australia, the Court of Appeal recently observed that no tariff exists for the offence of assault occasioning bodily harm because of the wide variety of circumstances in which it may be committed.[29] Their Honours in Duncan observed that:[30]
… In Holden v The State of Western Australia Wheeler JA reviewed previous authorities and concluded that in cases involving pleas of guilty for that offence, sentences expressed in post‑transitional terms from 6 months' suspended imprisonment, to 2 years' immediate imprisonment, were commonly imposed. It must, of course, be borne in mind that a discount for a plea of guilty will result in a lower sentence than in a case where the offender has proceeded to trial. In any event, her Honour's summary of the post‑transitional range of sentences customarily imposed should not be understood as suggesting that a sentence outside that range would be erroneous.
Most of the cases mentioned above were decided a decade or more ago. Older authorities must be considered with some caution because they may not reflect contemporary sentencing standards. In addition, legislative amendments to recognise the commission of assaults within family and domestic relationships as a specific aggravating factor has encouraged firmer sentences for such offences. Some signs of that firming up may be discerned, for example, in the context of the sentences imposed for aggravated grievous bodily harm, which were considered in Hansen v The State of Western Australia, in The State of Western Australia v Smith and in Baker v The State of Western Australia.
[29] Duncan v The State of Western Australia [2018] WASCA 154 [45].
[30] Duncan v The State of Western Australia [2018] WASCA 154 [45] - [46].
The circumstances considered by the sentencing magistrate in this matter were that the appellant's offending was very serious and it was proper to find, as the sentencing magistrate did, that the offending was at the upper end of the scale of seriousness. The appellant did not desist from the attack on his wife. His attack on her was protracted and persistent. This was not a single act of brief duration. It was a sustained attack preventing the victim from escaping on at least three occasions. Initially she attempted to escape from the theatre room, then from the front door and then from the garage. Finally she was able to escape from the front door.
Not only did the appellant kick the victim on a number of occasions in the stomach, buttocks and lower back causing her pain, he also grabbed her by the hair and thrust her head into the front door just before she escaped. Even leaving aside the issue whether the appellant had choked the victim or caused her to lose consciousness, the offence was clearly serious which resulted in lacerations to her forehead and right eyebrow when her head was slammed against the front door.
The appellant's personal circumstances were taken into account by the sentencing magistrate. Her Honour took into account the appellant was supporting children from a prior marriage and that he had significant financial issues. Her Honour acknowledged that the appellant had pleaded guilty to the offence on the first opportunity and had sought counselling on his own volition to try and address the reasons for his offending behaviour.
The appellant's criminal history cannot be characterised as 'limited', even though he had only one prior conviction. It was an offence of assault in a domestic situation against the same victim. The offence for which the appellant now stands convicted cannot be said to be an uncharacteristic aberration. The fact that the appellant has in the past completed community orders, whilst not an aggravating factor, the completion of a past community order without breach is a factor that is diminished by the act of re‑offending.
The sentencing magistrate had before her the information about the appellant's prospects of rehabilitation which indicated that whilst the appellant had engaged in private counselling with Relationships Australia on two occasions, the appellant received some counselling in relation to domestic violence issues after the first conviction in 2012. The pre‑sentence report, however, indicated there was only limited gains from counselling in 2012. Because of the appellant's work commitments he was unable to participate in any intensive programmes.
In my opinion, when regard is had to the circumstances presented to the sentencing magistrate, the appellant has failed to establish that it was not open to her Honour to conclude that a suspended term of imprisonment would not provide adequate punishment or deterrence. Having regard to the seriousness of the offence, it was open to the sentencing magistrate to find that an immediate term of imprisonment was the only appropriate sentence.
Conclusion
As none of the grounds of appeal have a reasonable prospect of success, leave to appeal should be refused with the consequence that the appeal should be dismissed.
Orders
I would make the following orders:
1.Leave to appeal is refused.
2.The application to admit additional evidence is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH31 OCTOBER 2018
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