Clarke v The State of Western Australia [No 2] - [2013] WASCA 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CLARKE -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 197

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 1 AUGUST 2013

DELIVERED : 27 AUGUST 2013

FILE NO/S: CACR 263 of 2012

BETWEEN: CAMERON ANDREW CLARKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 595 of 2012

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Manifest excess - Whether sentencing judge erred in description of the assault - Re-sentence

Legislation:

Criminal Code (WA), s 317(1)

Result:

Appeal allowed
Sentence imposed by Goetze DCJ on 13 November 2012 in the District Court of Western Australia set aside
Re-sentenced to 8 months' imprisonment suspended for 9 months

Category: B

Representation:

Counsel:

Appellant: Mr C Miocevich
Respondent: Ms S Linton

Solicitors:

Appellant: C & G Miocevich Law Offices
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Clarke v The State of Western Australia [2013] WASCA 3
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gray‑Herewini v Lee [2013] WASC 200
Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398
Holden v The State of Western Australia [2009] WASCA 50
Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264
Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368
Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289
Mourish v The State of Western Australia [2006] WASCA 257
Pearson v Newton [2010] WASC 98
Shoard v Van der Zanden [2013] WASC 163
Stoker v Raitt [2009] WASC 40
The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against sentence. The appellant was charged that on 4 September 2011 he unlawfully assaulted the victim and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code (WA). This offence carries a maximum penalty of 5 years' imprisonment. On 13 November 2012, he pleaded guilty to the charge. On the same day, he was sentenced to 9 months' immediate imprisonment. On 30 November 2012 he was released on bail pending this appeal: Clarke v The State of Western Australia [2013] WASCA 3.
The appellant's three grounds of appeal in effect make two points. Ground 1 alleges that the learned sentencing judge erred in describing the blow that was the subject of the charge as 'a gratuitous punch'. Grounds 2 and 3 allege that, in any event, the sentence was manifestly excessive in that the wrong kind of sentence was imposed. The appellant's case is that, at worst, a suspended term of imprisonment should have been imposed. Leave to appeal has been granted on ground 1 and grounds 2 and 3, on the basis that the grounds allege manifest excess.
For the reasons that follow, I would allow the appeal and set aside the sentence that was imposed and substitute a term of imprisonment of 8 months, suspended for a period of 9 months.

Background

At about 12.30 am on 4 September 2011, the appellant and a friend were walking through the Cultural Centre in Northbridge. The victim was also walking through the Cultural Centre, but was heading in the opposite direction to the appellant. The assault and surrounding events were captured on closed circuit surveillance. The relevant footage was viewed by the sentencing judge and this court.
It is not disputed that there was a verbal confrontation between the appellant and the victim. The footage clearly shows the victim gesturing towards someone. The appellant then deviated from his path and approached the victim. Both men circled each other and, as the learned sentencing judge found, they were both 'up for a fight'. It is apparent that each man's fists were raised. The appellant threw a single punch to the victim and hit him in the head. The victim immediately collapsed and, in

doing so, hit his head on the ground. As a result of the victim's head striking the ground, he was rendered unconscious.

The closed circuit television (CCTV) footage showed that the appellant walked away without attempting to render any assistance to the victim. A short time later, a CCTV camera on James Street captured the appellant re‑enacting the fight in a triumphant manner.
Fortunately, bystanders rendered prompt assistance to the victim, who was taken to Royal Perth Hospital. By the time the victim was examined, he was fully alert and orientated. Although there were no obvious external injuries, the victim was found to have suffered a linear undisplaced skull fracture of the occipital bone. That injury was treated conservatively and the victim made a full recovery. He did not provide a victim impact statement.
Originally, the appellant was charged with assault occasioning bodily harm. Later, that charge was upgraded to grievous bodily harm, but after receiving further medical evidence, the present charge was preferred. Once that was done, the appellant entered his plea of guilty. In the circumstances, the plea was entered at the first reasonable opportunity.

The appellant's antecedents

The appellant has good antecedents. At the time of the offence, he was 21 years of age. He was born, raised and educated in New Zealand, where he completed a butcher's apprenticeship. The appellant has a consistent work record and was, at the time of sentencing, employed by a smallgoods manufacturer. Apart from some driving offences of no real moment in New Zealand, he has no criminal record, either in that country or in Western Australia. He comes from a supportive family and was in a stable de facto relationship at the time of sentencing. The learned sentencing judge received references from persons who spoke well of the appellant.
The presentence report indicated that the appellant accepted responsibility for the assault and appeared anxious about the victim's wellbeing. The appellant recognised that alcohol had been a contributing factor to his offending behaviour and that he had, in the past, been involved in fights. It appears from the report that he was prepared to engage in counselling to deal with these issues.

Sentencing proceedings

After the prosecutor outlined the facts of the offence, during which the CCTV footage was played, his Honour heard from defence counsel in mitigation. During the plea in mitigation, the following exchange took place between his Honour and defence counsel:
GOETZE DCJ: Well, look, is the situation this? The most favourable view to the [appellant] is that something has passed between the [appellant] and the victim. They're both up for a fight. [The appellant] then punches the victim, who falls to the ground and hits his head and that's how the injury occurs. Is that factually how you see it?
WILLIAMS, MR:Yes. Look, I think there's no getting round what's in the CCTV footage, your Honour. It's clearly a situation where, it would be my submission, it appears to be a situation where words have been exchanged. The two have confronted each other and the offences [sic] ensued.
GOETZE DCJ: So it's not a case of self‑defence or anything like that.
WILLIAMS, MR: No, no. And - - -
GOETZE DCJ: So it's a gratuitous punch.
WILLIAMS, MR: There's no getting around that, your Honour. It's a punch and - - -
GOETZE DCJ: And it's gratuitous.
WILLIAMS, MR: Well, yes, it is.
GOETZE DCJ: All right (ts 38). (emphasis added)
His Honour then addressed the prosecutor in these terms:
Mr Costello, is that how I should view the facts?
COSTELLO, MR: Your Honour, the State would concede that that is the version of the facts that the court ought to accept without embarking on a trial of issues, but I've made reference to the witness statements, your Honour, and I anticipate that, were a trial of issues to take place, the State would probably be unable to raise the stated facts any higher than that.
GOETZE DCJ: Well, they're both up for a fight and it's a gratuitous punch.
COSTELLO, MR: Yes, your Honour.
GOETZE DCJ: And the result is not the punch itself but the falling on the ground and being struck on the head, or the head striking the ground.
COSTELLO, MR: That will be the most likely cause of the skull fracture (ts 38 ‑ 39). (emphasis added)
His Honour then proceeded to deliver his sentencing remarks. In doing so, his Honour, after referring to the CCTV footage, said:
[I]t seems the agreement between the parties is that you squared up to the complainant and both of you made some hand gestures. You were both up for a fight. Whether that's going to occur or not in every situation is a bit of a guess, things develop, but what is agreed is that yours was a gratuitous punch. The punch itself did not cause the injury, rather, it was the fall to the ground in which the complainant struck his head that caused the injury, and that caused him to become unconscious (ts 39 ‑ 40). (emphasis added)
His Honour refers to the punch as being 'gratuitous' twice more in his sentencing remarks, at one point saying:
Now, it's accepted that that was a gratuitous punch. There was no need to hit him. You could have just walked away (ts 42). (emphasis added)
His Honour correctly stated that imprisonment was imposed as a penalty of last resort. He said that in all of the circumstances, imprisonment was the only appropriate disposition. In so deciding, his Honour had particular regard to the need for punishment and personal and general deterrence. His Honour plainly had regard to the appellant's plea of guilty, which he said was early once the charge was amended, and the appellant's favourable antecedents. He noted that the appellant did not have a high risk of reoffending, and that he was willing to undergo counselling as required.
His Honour addressed the question of whether the sentence could be suspended. He said that the task was a difficult one. He referred in this context to the appellant's youth and the fact that he had not been to prison before. However, he said that the offence was 'too serious' and that the term of imprisonment should be served immediately.

Ground 1 - His Honour's characterisation of the punch as 'gratuitous'

The appellant submitted that his Honour's characterisation of the punch as 'gratuitous' was inapt and led to the appellant being sentenced on a more serious view of the facts than was justified.
The respondent submitted that although his Honour used the word 'gratuitous' in a way that is not generally accepted (that is, to mean entirely unprovoked, unexpected or completely senseless), it did not give rise to any injustice because it was clear from the sentencing remarks as a whole, that his Honour sentenced the appellant on the correct factual basis.
I would not have characterised the appellant's punch as gratuitous. In the context of cases involving violence, the word is usually used in the way contended by the respondent, namely, that the violent act was entirely unprovoked, unexpected and completely senseless. Here, the punch occurred in circumstances where each protagonist was prepared and willing to fight the other and the blow that was struck, although in law unjustified, could not be said to be entirely unprovoked or unexpected.
That said, reading the sentencing remarks as a whole, his Honour correctly described the circumstances of the assault and correctly characterised them as serious. I am not persuaded that his Honour's use of the word 'gratuitous' showed that his Honour took a more serious view of the facts than was justified. In my opinion, although the use of the word 'gratuitous' was inapt, it was not productive of any material error in the imposition of the sentence. Accordingly, I would not uphold ground 1.

Grounds 2 and 3 - Was the sentence manifestly excessive?

An allegation that a sentence is manifestly excessive is an allegation of implied error. This court is not entitled to intervene merely because it would have imposed a different sentence to that of the sentencing judge. This court can only intervene if it is satisfied that the sentence is plainly unjust or unreasonable. A sentence may be manifestly excessive because the wrong type of sentence has been imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].
The determination of whether a sentence is manifestly excessive or not requires the sentence to be viewed in the perspective of the maximum sentence prescribed by law for that offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type, and the personal circumstances of the offender.
The law relating to when a suspended term of imprisonment can be imposed was explained by McLure P in Cartwright v The State of Western Australia [2010] WASCA 4 [8] in these terms:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
I have already set out the maximum penalty for the offence of assault occasioning bodily harm.
There is no tariff for the offence of assault occasioning bodily harm because of the great variation that exists in the circumstances of both the offending and the offenders. Further, although the sentences in other cases are relevant for the purpose of achieving broad consistency, ultimately, each case must be decided on its own particular set of facts and circumstances.
The appellant and the respondent have cited a number of decisions by this court and its predecessor, the Court of Criminal Appeal, and the decisions of single judges in the General Division of the Supreme Court. The cases that were cited are Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289; Mourish v The State of Western Australia [2006] WASCA 257; The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394; Holden v The State of Western Australia [2009] WASCA 50; Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326; Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368; Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264; Pearson v Newton [2010] WASC 98; Stoker v Raitt [2009] WASC 40; Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398; Shoard v Van der Zanden [2013] WASC 163; and Gray‑Herewini v Lee [2013] WASC 200.
It is unnecessary and unprofitable to micro‑analyse the facts of each of the cited cases and compare them to the one at hand. In Holden, Wheeler JA, while acknowledging that it was difficult to discern a range because of the great variation of the circumstances of the cases, noted that sentences of between 6 months' suspended imprisonment to 2 years' immediate imprisonment have been imposed in cases where there had been a plea of guilty. Self‑evidently, the sentence imposed by the learned sentencing judge in the present case falls within that range. However, the fact that a sentence falls within the range of sentences customarily imposed does not necessarily lead to the conclusion that the sentence was not manifestly excessive. This is because, as I said earlier, each case must be decided on its own facts.
I accept without reservation that the appellant should not have assaulted the victim. Further, striking the victim forcefully to the head, leading to him falling onto a hard surface and suffering the injury I have described, was serious criminal conduct. However, the criminality of the appellant's actions must be seen in the context that both men were 'up for a fight', that is, they were prepared and willing to engage in a fist fight. The appellant and the victim were close together and face to face. Plainly the blow was sufficient to knock the victim to the ground, but it was not suggested that the blow rendered the victim unconscious. The confrontation was very brief and did not involve multiple blows or the use of weapons.
The injury the victim sustained must not be ignored. Any head injury is a matter for concern, but, perhaps fortunately, the undisplaced fracture to the victim's skull required only conservative treatment, was not permanent or life threatening, and the victim has completely recovered.
The appellant has good antecedents. He pleaded guilty at the first reasonable opportunity and does not pose a risk of reoffending. He is still young and he is amenable to rehabilitation.
Of course, general deterrence is an important factor in cases such as this, involving young men fighting in public places like Northbridge.
I do not doubt that his Honour was correct to impose a term of imprisonment. However, having regard to the circumstances of the offence, particularly those referred to in [30] above, and the appellant's favourable antecedents, and with great respect to the learned sentencing judge, I do not think that the stage had been reached where the only appropriate disposition was a term of immediate imprisonment. In my view, it was plainly unjust and unreasonable to impose a term of immediate imprisonment. What was required in this case, was the imposition of a suspended term of imprisonment. It is my opinion that, in the combination of circumstances of this case, which I regard as unusual, such a disposition satisfies the requirements of proper punishment, deterrence and rehabilitation.

Resentencing

The appellant spent 17 days in custody before being released on bail. Having regard to this fact and that the appellant has been on bail for more than 7 months, it is my view that the appropriate sentence to impose upon the appellant is a term of 8 months' imprisonment, which I would suspend without conditions for 9 months.
I would make the following orders.
1.The appeal is allowed.
2.The sentence imposed by Goetze DCJ on 13 November 2012 in the District Court of Western Australia is set aside.
3.The appellant is sentenced to 8 months' imprisonment suspended for 9 months to commence today.