Crotty v Peck
[2021] WASC 51
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CROTTY -v- PECK [2021] WASC 51
CORAM: SMITH J
HEARD: 19 FEBRUARY 2021
DELIVERED : 19 FEBRUARY 2021
PUBLISHED : 26 FEBRUARY 2021
FILE NO/S: SJA 1086 of 2020
BETWEEN: DANIEL CROTTY
Appellant
AND
GEOFFREY PECK
First Respondent
KELLY GROOTVELD
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S WILSON
File Number : BU 1345 of 2020, BU 1892 of 2020, BU 1895 of 2020, BU 1896 of 2020, BU 1897 of 2020
Catchwords:
Criminal law - Appeal against sentence - Whether individual sentences manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 51(2)
Criminal Code (WA), s 68, s 70A(2), s 172(2), s 317(1), s 338B(b), s 378, s 409(1)(c), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(2)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 7(2)(b), s 7(2)(c), s 39
Result:
Leave to appeal out of time granted
Leave to appeal on grounds 1, 2 and 4 refused
Leave to appeal on ground 3 allowed
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | Ms G N Beggs |
| Second Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Baker v The State of Western Australia [2020] WASCA 117
Cleminson v The State of Western Australia [2017] WASCA 58
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Drage v The State of Western Australia [2021] WASCA 6
Duncan v The State of Western Australia [2018] WASCA 154
Hayward v Martin [2014] WASC 309
Johnson v The Queen [2004 HCA 15; (2004) 78 ALJR 616
Kabambi v The State of Western Australia [2019] WASCA 44
King v The State of Western Australia [2013] WASCA 131
Krencej v The State of Western Australia [2019] WASCA 82
Mill v The Queen [1988] HCA 70; (1988]) 166 CLR 59
Richardson v Pickett [2008] WASC 203
Spirovski v The State of Western Australia [2017] WASCA 230
The State of Western Australia v AHD [2021] WASCA 13
Tunney v The State of Western Australia [2013] WASCA 286
SMITH J:
The appeal, the grounds of appeal and the result
The appellant seeks leave to appeal, out of time, the sentence imposed, on 21 August 2020, by a magistrate sitting in the Magistrates Court at Bunbury, for one count of being armed in a way that may cause fear, one count of breach of bail, one count of stealing, one count of assault occasioning bodily harm, and one count of making a threat to injure or harm.
The offence of being armed in a way that may cause fear was committed by the appellant on 4 March 2020. The breach of bail occurred on 2 April 2020, and was a breach of a bail undertaking entered into by the appellant in respect of the first charge. The remaining three charges occurred on 2 April 2020, and arose out of a single course of conduct.
On 25 June 2020, the appellant entered pleas of guilty to each of the offences.
On 21 August 2020, the appellant was sentenced to a total effective sentence of 18 months' immediate imprisonment with eligibility for parole, backdated to commence on 20 August 2020. The details of offences and the terms of imprisonment imposed for these offences are as follows:
Charge No
Offence
Section
Maximum penalty
Sentence imposed
Concurrency
BU 1896/2020
Assault causing bodily harm
s 317(1) Criminal Code
5 years' imprisonment or on summary conviction 2 years' imprisonment and a fine of $24,000
12 months' imprisonment (discounted from 20 months' imprisonment by 5 months for an early plea) and credited 3 months for time spent in custody
Concurrent (head sentence)
BU 1897/2020
Threat to injure or harm
s 338B(b) Criminal Code
3 years' imprisonment or on summary conviction 18 months' imprisonment and a fine of $18,000
6 months' imprisonment (discounted from 8 months for an early plea)
Concurrent
BU 1895/2020
Stealing
s 378 Criminal Code
7 years' imprisonment
2 months' imprisonment (discounted from 3 months for an early plea)
Concurrent
BU 1892/2020
Breach of bail
s 51(2) Bail Act 1982
fine of $10,000 or 3 years' imprisonment
1 month imprisonment
Concurrent
BU 1345/2020
Being armed in a way that may cause fear
s 68 Criminal Code
7 years' imprisonment or on summary conviction 3 years' imprisonment and a fine of $36,000
6 months' imprisonment (discounted from 8 months for an early plea)
Cumulative
Total:
18 months' imprisonment
At the time the appellant committed the offence of being armed in a way to cause fear he was subject to a 12 months' community based order requiring that he serve 120 hours of community service.
The appellant was sentenced to a community based order in the Bunbury Magistrates Court on 10 February 2020 following pleas of guilty to six counts of gaining benefit by fraud contrary to s 409(1)(c) of the Criminal Code (WA), one count of being in possession of stolen or unlawfully obtained property, contrary to s 417(1) of the Criminal Code, and one count of stealing contrary to s 378 of the Criminal Code.
When the appellant was sentenced for the offences the subject of the appeal on 21 August 2020, the community based order was cancelled and fines were imposed for each of the counts of breach of the community based order, which counts related to each of the charges for which he was sentenced on 10 February 2020. On 21 August 2020, the appellant was also sentenced for one count of obstructing a public officer, one count of possessing a prohibited drug (cannabis), one count of trespass, and one count of stealing. He was fined for each of these offences.[1]
[1] There is no appeal against the sentences imposed for these offences. Annexure 1 to these reasons is a schedule of the details of these offences, including the breach of the community based order offences.
In grounds 1 and 2 of the appeal, the appellant challenges two of the individual terms on the basis that those individual terms are manifestly excessive. Ground 3 alleges that the total effective sentence infringes the first limb of the totality principle and asserts that a disposition other than immediate imprisonment ought to have been imposed. Ground 4 asserts an express error in his Honour's treatment of factors that are said to be mitigating, which factors relate only to the offence of assault causing bodily harm.
After hearing from the parties on 19 February 2021, I made orders granting leave to appeal out of time, refusing leave to appeal on grounds 1, 2 and 4, granting leave to appeal on ground 3, and allowing the appeal.
In respect of ground 3, I formed the opinion that the total effective sentence for the five offences offended the first limit of the totality principle, and I reduced the sentence on the charge of being armed so as to cause fear to 4 months' immediate imprisonment.
Accordingly, I made orders setting aside each of the sentences and resentenced the appellant and made orders to the effect to reduce the appellant's total effective sentence of immediate imprisonment to 16 months, backdated to 20 August 2020, with eligibility for parole.
These are my reasons for making the orders.
Background - appellant granted bail prior to sentence
On 4 March 2020, the appellant was arrested for the offence of being armed so as to cause fear, and was granted bail on the condition that he enter into a personal undertaking in the amount of $2,000. He was remanded to appear on 2 April 2020. The appellant did not answer his bail on 2 April 2020, and an arrest warrant issued which resulted in him being charged with the offence of breach of bail.
On 3 April 2020, the appellant was arrested and charged with a breach of bail, assault causing bodily harm, making a threat to unlawfully injure or harm and stealing. He was remanded in custody.
On 25 June 2020, the appellant entered pleas of guilty to each of the five offences the subject of this appeal, together with other offences including the breaches of the community based order. He was remanded pending sentence and the preparation of an adult pre‑sentence report and a psychological condition report. No application for bail was made on that day. However, the court was informed that a bail application may be made in due course as the appellant had an offer of Homeswest housing.
On 3 July 2020, an application for bail was made on the basis of changed circumstances. At the bail hearing, counsel for the appellant informed the court that the appellant's partner had secured accommodation, and a copy of the lease for a property was provided to the court. At the conclusion of the hearing home detention bail was granted.
In her reasons for decision for granting bail, the presiding magistrate said:[2]
I am persuaded that it is appropriate to grant you bail on these matters because, although it's not a fait accompli, you may not be sentenced to an immediate term of imprisonment of (sic: on) these new matters. It might be that a magistrate will be persuaded to allow you to serve an order in the community.
[2] ts 5, 3 July 2020.
The conditions of the appellant's bail required him to enter into a personal undertaking of $2,000 with a surety of the same amount, together with the following conditions:
(a)he attend random urinalysis testing and provide a sample as directed by a community corrections officer;
(b)he reside at a particular address and be at that address between the hours of 8.00 pm and 7.00 am daily and present to the front door of the premises upon police request; and
(c)he comply with all lawful directions of a community corrections officer.
The facts of the offences the subject of the appeal
The facts of the offences were read by the police prosecutor to the court on 20 August 2020.
The facts of the offence of being armed in a way to cause fear were as follows.
At about 8.00 am on 4 March 2020 an unlocked car parked outside a medical centre in Bunbury was opened and a number of items stolen, such as a thumb drive, personal documents and Ray‑Ban sunglasses.
At about 4.45 pm on 4 March 2020 the appellant approached a patron of the Burlington Hotel in Bunbury outside the hotel. He asked for a cigarette which was refused, and he was asked to move on. The appellant became aggressive towards the patron, and a fight broke out. After a short time, the appellant walked away and onto the street. Whilst walking away he reached into the back of his shorts and produced a red and black handle Coleman single edged knife. He turned and looked in the direction of the patron, and placed the knife to his throat and made a throat cutting gesture. Staff of the hotel who witnessed the incident called the police. The police located the appellant a short time later and he was searched. They located the knife and the items stolen from the parked car near the medical centre.[3]
[3] The appellant was charged with stealing the items from the parked car. On 21 August 2020 he was fined $200; BU 1344/20; see Annexure 1 to these reasons.
The facts of the offences of assault occasioning bodily harm, threat to injure or harm and stealing were as follows.
At about 2.00 pm on 2 April 2020 (on the day he was due to answer his bail), the appellant woke up in the victim's home after having been drinking with the victim. The victim was known to the appellant.
The appellant punched the 52-year-old male victim repeatedly to the face and chest. The victim attempted to escape and was again assaulted. The assaults took place in the hallway, lounge room and kitchen area. The victim suffers from a severe disability and had no capacity to defend himself. He was unable to prevent the assault nor defend himself.
The appellant was armed with a 12 to 14 cm blade fishing knife. Whilst holding the knife in his right hand he told the victim, 'You will do what I tell you'. The victim attempted to leave. The appellant caught the victim by his clothing and said to the victim, 'I will kill you. I will stab you'.
Before leaving the victim's home the appellant stole from the victim's home two Rolex make wristwatches, two rings, and necklace, a zippo make cigarette lighter, clothing, a men's wallet and some tablets, which had a combined value of $2,000.
Sentencing submissions
Prior to the sentencing hearing on 20 August 2020 the appellant's defence counsel sent to the court a brief written outline of submissions dated 19 August 2020 which had been drafted prior to the appellant's defence counsel seeing the pre‑sentence report and the psychological report. Attached to the outline of submissions was a memorandum dated 19 August 2020 written by a counsellor, Mr Phil Cutting, who provides counselling services through a business named Eureka Counselling.
Mr Cutting stated in the memorandum that:
(a)the appellant had been referred to the Eureka Counselling service by his general practitioner on a mental health care plan for counselling issues around depression and anxiety;
(b) the appellant had attended voluntarily for counselling on 10 August 2020 and 17 August 2020; and
(c)the appellant impressed as being motivated to attend sessions and work on a range of complex traumas from both past and more recent events that are assessed to be underlying of depression and anxiety.
The sentencing magistrate indicated that he had received the written sentencing submissions and had read them. The appellant's defence counsel also tendered a document from the St John of God Social Outreach service which indicated that the appellant had voluntarily referred himself to that service.
The letter from the St John of God Outreach service is dated 19 August 2020 and was addressed to the appellant. The author of the letter is Mr Darren Jefferies, an AOD Counsellor/Team Leader of the South West Community Alcohol & Drug Service. In the letter Mr Jefferies stated that the appellant attended the service on four occasions between 24 July 2020 and 11 August 2020, and had been scheduled to attend two future appointments. One was to attend a counselling appointment and an appointment with a doctor to review his pharmacotherapy engagement.[4] Mr Jefferies also stated that the appellant had been engaging well and appeared to be motivated to become as healthy as possible and move away from problematic substance use.
[4] These appointments were for dates past the date of sentence.
At the sentencing hearing on 20 August 2020, the appellant's counsel made the following sentencing submissions:
(1)In respect of the charges of assault occasioning bodily harm, the threat to injure and harm and stealing:
(a)the appellant admitted the matters alleged in the statement of material facts;
(b)the appellant was very angry when he woke up because he felt he had been abused whilst he was drugged; and
(c)he was later found on the roadside (the next day) and taken to hospital where he was subsequently arrested.
(2)By committing these offences the appellant has breached a community based order.
(3)The appellant had entered pleas of guilty immediately after negotiations with the police had been concluded.
(4)The appellant is age 42, a brick paver by trade. The appellant suffers from back and shoulder sprains.
(5)The appellant's offending arose in part because he has been homeless and has been for some years. He has been waiting for a Homeswest house for some 10 years but has now secured accommodation with his partner. The appellant's partner is now pregnant.
(6)The appellant was arrested on 2 April 2020, and released on bail on 8 July 2020, having served approximately 3 months or 96 days in custody in Hakea prison.
(7)The pre‑sentence report states that the appellant is willing to engage (with community based orders) and he wants to turn his life around. The psychological report makes mention of traumatic incidents in the appellant's childhood that needs to be addressed through counselling. The appellant is making a valiant attempt to turn his life around. He had voluntarily referred himself to counselling to two different services (St John of God Social Outreach service and Eureka Counselling).
(8)The appellant has cleaned himself up to the point where he (defence counsel) did not recognise him before court this morning.
(9)An appropriate sentencing outcome would be a community based order or a conditional suspended order which would require the appellant to continue to undergo counselling and psychological counselling.
The prosecutor made no sentencing submissions.
The appellant was then remanded in custody for sentence to the following day.
The pre‑sentence and psychological reports before the sentencing magistrate
Psychological report
The author of the psychological report dated 11 August 2020 interviewed the appellant on 11 August 2020. In preparing the report, the author engaged in telephone discussions with Mr Jefferies and Mr Cutting.
The author of the psychological report stated:
(1)While it was generally difficult to determine, it does appear that since leaving school, the appellant has had a very poorly developed sense of purpose and direction in life. He has had an extensive history of offending, ongoing and consistent use of illicit substances and excessive alcohol consumption, considerable accommodation instability, and what appears to be some level of mental health problems.
(2)The appellant commenced the use of cannabis at around age 13, continuing to use this substance on an intermittent basis for most of his life. He commenced the use of amphetamines at age 13 and has also been using this drug for much of his life. It also appears that the appellant has engaged in significant excessive consumption of alcohol for much of his life. While the appellant spoke little of this substance use, he did acknowledge that he rarely got drunk anymore and said when he has been inebriated in the past he would get out of control, referring to the inappropriate expression of his anger. It appears that his violence‑related offences of 4 March 2020 and 2 April 2020 occurred while he was under the influence of alcohol.
(3)The appellant's substance use counsellor (Mr Jeffries) is of the opinion that the appellant has made some improvement in both his appearance, and motivation related to absence of his substance use.
(4)The appellant's personal counsellor (Mr Cutting) is of the opinion that the appellant is experiencing untreated complex trauma as a result of childhood neglect and abuse.
(5)In respect of the 17 offences that the appellant was to face the court for that occurred between July 2019 and April 2020, the appellant acknowledged his guilt of most of the offences, but appeared to have much difficulty unequivocally accepting responsibility for his actions. He stated for example, as to the violence‑related offence of 4 March 2020, that he was provoked and had no intention of using the fishing knife in a violent manner. Further, as to the offences of 2 April 2020, the appellant said he was invited into the property by the victim, where he and this man had a few drinks. He fell asleep and when he later awoke he had a belief that he was sexually assaulted and it was this alleged assault that was the motivation for him to assault the victim and steal the victim's property.
(6)The appellant's extensive criminal history, together with observations and the comments made by the appellant at the interview, suggest a strong likelihood of the presence of an Antisocial Personality Disorder.
(7)The specific factors triggering or precipitating the offences (for which the appellant was to be sentenced) are unclear. The appellant appears to hold a belief that his homelessness and lack of support were the primary influencing factors. This, however, appears simplistic and is unlikely to explain the extent of his offending behaviour. Instead, it is suggested that his offending is likely to have been strongly influenced by his overall dysfunctional lifestyle, characterised by not only his accommodation instability but also by his negativistic attitude towards himself and the world, his illicit substance dependence, and what seems to be a lack of a clear and healthy sense of purpose and direction in life.
(8)While the appellant's recognition and desire for change are likely indications of the potential for more effective self‑management of his behaviour, this will be particularly more challenging than he might believe. He appears to place considerable emphasis upon both his current partner, and his now stable accommodation, as the primary sources of motivation for positive change in his life. He did not appear to have an in‑depth understanding of the need for such change at a personal, internalised level.
The author of the psychological report assessed the appellant as suitable for both group programmatic and individual psychological intervention and that should he receive a custodial sentence of sufficient length he will be further assessed upon incarceration for placement on one or more treatment programs. The author also recommended that the appellant receive individual counselling which is unlikely to be provided in a custodial setting as he has particular complex and extensive issues.
The author recommended if sentenced to a term of imprisonment:
(a)he should be encouraged to re‑engage in individual counselling on release from prison; and
(b)he will require extensive reintegration support in other areas of life, such as employment and accommodation.
Pre‑sentence report
The author of a pre‑sentence report dated 19 August 2020 interviewed the appellant on 24 July 2020 and reported the following matters:
(1)The appellant reported that the circumstances of the offences were as set out in the police statement of material facts and advised that the offences were a result of his homelessness, negative peer associations and polysubstance abuse over a period of time.
(2)The appellant articulated minimal empathy for his offending behaviour and at times minimised the offences as to normalise his offending behaviour. However, he did state that he had to clean up his act and he accepted responsibility for his poor behaviour both past and current.
(3)The appellant stated that he was not proud of what he had done and commented that the next phase of his life would be positive. He indicated he now has stable accommodation, possible employment opportunities and since his release to bail has engaged with his general practitioner who has completed a mental health care plan which includes anti-anxiety medication and psychological counselling.
(4)The appellant has engaged with the South West Community Alcohol and Drug Services (St John of God Social Outreach service), is attending scheduled appointments, and is reported as having made some gains. The counsellor reports that the appellant presents as motivated towards his goal of maintaining abstinence from illicit substances and alcohol which has been confirmed in his urinalysis results.
(5)Sentencing options were discussed with the appellant who stated that he is now motivated to address the underlying factors of his offending behaviours and that he did not want support with (community based) orders in the past but he does now because he has changed and needs support to keep the positive changes in his life.
The author of the report had regard to the appellant's criminal history and noted that since first coming to the attention of the courts as an adult in 1995, the appellant has an extensive history reflecting a significant and broad range of serious offending including; traffic related violations, violent offending, drug and alcohol related offending, nuisance, property and fraud related offending.
The author of the report recorded the department's records of the appellant's previous response to supervision has not been favourable as he has either reoffended or has been non-compliant. These records indicate that in 2002, 2010 and 2016 the appellant was subject to community based orders which were cancelled because he reoffended. In 2011, he was subject to a pre‑sentence order which resulted in a sentence of imprisonment, and in 2012 a pre‑sentence order was cancelled and a warrant was issued.
The author of the report also noted that the current breaches of the community based orders made by the court on 10 February 2020 were pending.
Consequently, due to the appellant's past compliance issues with community dispositions the author of the pre‑sentence report formed the opinion that she was unable to assess the appellant as suitable for a community disposition.
The author of the pre‑sentence report also reported in respect of the appellant's compliance with his conditions of bail that took effect on 7 July 2020 that:
(a)there had been initially some concerns with the appellant's engagement in the requirements (of the conditions). However, engagement then improved during the period of time he had remained abstinent from illicit substances. Recently his supervising officer had not been able to contact the appellant via telephone to direct him to attend for random urinalysis without the help of the police who had conducted curfew checks;
(b)the appellant had been directed to attend for urinalysis on five occasions. On four of those occasions between 14 July 2020 and 17 August 2020 the results of the urinalysis had not returned positive to illicit substances and he has been taking prescribed medication. On the other occasion, being the second occasion in July 2020, he recorded a void sample due to the creatinine level being below the Australian Standards.
The author of the pre‑sentence report recommended that should the court order a term of imprisonment, the appellant is assessed as suitable for parole.
The magistrate's sentencing remarks
After recounting the facts of the offences, his Honour made the following sentencing remarks:
(1)The victim of the assault had provided to the court a victim impact statement in which he described his fear during the assault, his inability to defend himself, and the graphic details of what occurred in the course of the assault. The victim also described:
(a)the violation of his property which had been stolen in respect of which he only has limited means to replace;
(b)the fear he now has and continues to have in his home; and
(c)the fear he held when he was threatened by the knife and being told he would be stabbed and killed, and being not able to do anything about it because of his disability.
(2)The appellant's action towards a disabled victim was serious in the extreme and a 'gutless' act. The appellant had seriously assaulted and terrified one of society's most vulnerable citizens.
(3)He had read the contents of the pre‑sentence report and the psychological report and noted all of the matters raised in the reports personal to the appellant in respect of his upbringing and life generally up until this time and noted those matters that have occurred that have placed the appellant in a difficult position today.
(4)He noted that the appellant:
(a) is now 42 years of age, a brick paver with no dependents who is now in a relationship with a woman who is now pregnant;
(b)suffers from back and shoulder sprains and injuries; and
(c)has a past history of schizophrenia[5] from a drug induced psychosis.
[5] It appears that his Honour's reference to schizophrenia is not correct. In the psychological report before his Honour it is stated that referral documents indicate that some time ago, the appellant was hospitalised, with a subsequent diagnosis of a drug induced Paranoid Delusion. Further, the author of the psychological report found that while the appellant's behaviour in general presentation at interview was considered unusual and indicative of some level of psychological distress, there were no indications of serious psychiatric disorder.
(5)The appellant has a 'sizeable record' that includes similar offences for being armed and assaults and threats.
(6)More recently, since the appellant was released on home detention, he had begun to engage in some drug rehabilitation, although there had been some issues with that, but nonetheless the appellant has started to address some of the issues that he has. His girlfriend has found stable accommodation for the both of them, obviously with the intention of having a stable place for the child that will be born at some stage in the future.
(7)The appellant's defence counsel had urged the court to impose a disposition other than immediate imprisonment, and made a submission in that the court should make a conditional suspended imprisonment order to allow the appellant to seek some form of rehabilitation within the community.
(8)All sentencing options open to the court had been considered. The maximum penalty that can be imposed by the Magistrates Court in relation to the serious offences before the court are:
(a)for the assault causing bodily harm the maximum penalty is 2 years' imprisonment or a fine of $24,000;
(b)for the threats to harm or injure the maximum penalty is 18 months' imprisonment or a fine of $18,000; and
(c)for being armed to cause fear the maximum penalty is 3 years' imprisonment or a $36,000 fine.
(9)The most serious of the offences before the court is the offence of assault causing bodily harm. It was a very serious assault on a person with a physical disability who could not defend himself. The appellant punched the victim multiple times to the head and chest, knocked him to the ground and punched him again a number of occasions before he made a threat with a knife to stab and kill the victim. This left the victim petrified and in fear of his life. The appellant's actions have profoundly changed the victim's life for the worst in that:
(a)the appellant stole items belonging to the victim which has left the victim out of pocket, as he is in receipt of government support, and has limited means now to replace those items; and
(b)the appellant has left the victim in despair and fear while he has to continue to live in the same house where this serious assault occurred.
(10)The appellant's conduct on 2 April 2020 was so serious that the seriousness of the offences outweighs the matters that are personal and mitigatory to the appellant. This factor necessarily results in a requirement to impose a sentence that reflects that seriousness of the offences and also reflects both personal and general deterrence to other members of the community who may think that conduct such as this to vulnerable people in the community is acceptable.
(11)A term of imprisonment must be imposed. The offences on 2 April 2020 are so serious that there is no prospect that a term of imprisonment should be suspended, either conditionally or otherwise. Consequently, the only appropriate sentence is an immediate term of imprisonment.
(12)The offence of assault causing bodily harm (on 2 April 2020) is at the higher to upper end of seriousness for this type of offence that the Magistrates Court should deal with (and not commit to the District Court for sentence). Given the seriousness of the offence, the starting point of an appropriate sentence of imprisonment is 20 months which should be discounted for the early plea of guilty by 5 months and by the deduction of 3 months for the time the appellant spent in custody in remand. Accordingly, the sentence for this offence is a term of immediate imprisonment of 12 months (the head sentence).
(13)For the offence of threats to harm (on 2 April 2020), the starting point of an appropriate sentence is 8 months' imprisonment which should be discounted to 6 months' immediate imprisonment to reflect the early plea of guilty, to be served concurrently (with the head sentence).
(14)For the offence of stealing (on 2 April 2020) of various items valued at about $2,000 an appropriate sentence is 3 months' immediate imprisonment discounted to 2 months to reflect the early plea of guilty (to be served concurrently on the other terms of imprisonment). An order is made for the appellant to pay compensation of $2,000 to the victim.
(15)In respect of the offence of being armed in a way that may cause fear on 4 March 2020, the appellant:
(a)frightened numerous people and patrons at or near the hotel; and
(b)produced a knife and ran it across his throat in an intimidating and threatening manner towards them. For this offence the starting point for an appropriate sentence is 8 months' imprisonment reduced by 2 months to reflect his early plea of guilty. Accordingly, the sentence for this offence is a term of 6 months' immediate imprisonment to be served cumulatively upon the other terms of imprisonment.
(16)For the offence of breach of bail on 2 April 2020, the sentence is 1 month immediate imprisonment to be served concurrently on the other terms of imprisonment.
His Honour then ordered that the period of 18 months' imprisonment be deemed to have commenced from 20 August 2020, and the appellant to be eligible to be released on parole.
General appellate sentencing principles
The principles applicable on appeal against sentence are well established.
Where, as in this appeal, there is an allegation of express or implied error in the sentencing process, an appellate court will not intervene simply because the court might have imposed a different sentence. Rather, an appellate intervention is only warranted where the court is satisfied that a different sentence should have been imposed at the original hearing.[6]
[6] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
The principles that apply on an appeal against sentence contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle are as follows:[7]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[7] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 1 and ground 2 ‑ manifest excess
In grounds 1 and 2 of the appeal the appellant asserts that the individual sentences of 6 months' imprisonment imposed for the offence of being armed in a way that may cause fear, and the sentence of 12 months for the offence of assault causing bodily harm, are manifestly excessive.
At the hearing of the appeal the appellant made a submission that he does not challenge the type of sentence imposed for the offence of being armed in a way to cause fear but the length of the sentence.
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:[8]
(1)the maximum sentence prescribed by law for the crime;
(2)the standards of sentencing customarily imposed with respect to it;
(3)the place that the criminal conduct occupies in the scale of seriousness of crimes of that type; and
(4)the offender's personal circumstances.
[8] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
When sentencing an offender:
(a)s 6(1) of the Sentencing Act 1995 (WA) requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)s 6(2) of the Sentencing Act requires that the seriousness of the offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
Section 39 of the Sentencing Act prescribes the sentencing options in respect of natural persons. By s 39(3), a court must not impose a term of imprisonment[9] unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use any of the other options.
[9] See s 39(2)(h).
Section 6(4) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[10]
Ground 1 - whether the sentence for the offence of being armed in a way that may cause fear was manifestly excessive?
[10] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; DKN v The State of Western Australia [2018] WASCA 87 [35].
The appellant points out that there is limited guidance for sentencing standards in relation to the offence of being armed in a way that may cause fear. He, however, has referred to three authorities which have dealt with conduct constituting this offence, the circumstances of which are claimed to be more serious than the circumstances of the offence committed by the appellant. The appellant argues that when regard is had to the sentences imposed in those more serious matters, it necessarily follows the sentence he received for this offence was manifestly excessive.
The three authorities referred to by the appellant are the Court of Appeal decision in King v The State of Western Australia,[11] and single judge decisions in Hayward v Martin[12] and Richardson v Pickett.[13]
[11] King v The State of Western Australia [2013] WASCA 131.
[12] Hayward v Martin [2014] WASC 309 (Jenkins J).
[13] Richardson v Pickett [2008] WASC 203 (McKechnie J).
The appellant in King used a small hammer to break a jewellery cabinet in a store and had taken watches. The appellant in that matter then brandished the hammer to deter his pursuers. The brandishment of the hammer was the basis of the s 68(1) charge. The Court of Appeal noted that it was significant that the hammer had not been used in an assault on anyone and said 'the obvious intention was to deter pursuit rather than to threaten immediate harm'.[14] The sentence of 2 years' imprisonment for this offence was reduced on appeal to 12 months' imprisonment, although the total sentence of 3 years' imprisonment was undisturbed, being for other offending as well.
[14] King v The State of Western Australia [2013] WASCA 131 [19].
The appellant argues that brandishing of the hammer in King is quite different to the appellant's behaviour because it was behaviour in furtherance of retreating from a serious crime, akin to stealing with the threat of violence.
In Hayward, a sentence of 7 months' imprisonment suspended for 12 months was upheld on appeal for a charge under s 68(1) where the offender was observed behaving aggressively, smashing a beer bottle on the ground and walking along Bishop Street in Morley, holding a 30 cm long knife in his left hand, pointing forward, with worried members of the public close by. The offender suffered from an intellectual disability, and had non‑custodial sentences imposed for a number of public nuisance offences.
In Richardson v Pickett, the State appeal against a suspended sentence of 6 months suspended for 2 years for a charge under s 68(1) was upheld and the offender resentenced to immediate imprisonment of 6 months. The offender was young, and the behaviour involved the use of a machete by the offender in a sustained attack with two others causing grievous bodily harm to the victim. His suspended assault sentence was similarly appealed, and the suspension removed.
On the face of the facts in this matter, the appellant argues that several points can be made about the relative conduct going to the seriousness of his behaviour which arguably make it less serious than cases that usually attract a term of imprisonment that is not suspended:
(a)the appellant was not charged with assault of the patron with whom he had a fight, nor of anyone else;
(b)although the appellant was involved in a fight outside the hotel, he did not touch or use the weapon he was carrying until he had walked away from the hotel. He did not use the weapon to gain an advantage in the fight, or to frighten others at that time;
(c)the appellant had walked away from the hotel and was no longer close to other people when he pulled out his knife to display it in anger before retreating further; and
(d)so there was no real risk or threat that the knife would be used in direct violence against a person.
The appellant also argues that:
(a)his behaviour was at the high end of seriousness for nuisance behaviour in that he had asked for a cigarette, got involved in a fight, and pulled out a knife when he was a safe distance away to make an aggressive display that would disturb onlookers; and
(b)it was not behaviour for which a term of immediate imprisonment would ordinarily be imposed in the absence of an accompanying and connected violent offence.
As the respondents point out there is no established tariff for offences of being armed in a manner that may cause fear. The offence may be committed in a wide range of circumstances that makes comparison to other decided cases difficult.
In Cleminson v The State of Western Australia,[15] the Court of Appeal referred to the decisions of King v The State of Western Australia,[16] and Hayward v Martin[17] and observed that in Hayward, Jenkins J had noted that the sentencing outcomes for an offence of being armed in a way that may cause fear range between 8 and 16 months' immediate imprisonment, and found that it could not be accepted that the small number of cases (five in total) considered in King did not establish an identifiable sentencing pattern.[18]
[15] Cleminson v The State of Western Australia [2017] WASCA 58.
[16] King v The State of Western Australia [2013] WASCA 131.
[17] Hayward v Martin [2014] WASC 309.
[18] Cleminson v The State of Western Australia [2017] WASCA 58 [29] ‑ [30].
Whilst the appellant's offending can be said to be less serious than some of the aggravating factors in Richardson v Pickett,[19] the place that the conduct of the appellant occupies on the scale of seriousness of offending clearly cannot be characterised as at the higher end of seriousness of nuisance behaviour. The appellant's actions were threatening and menacing and directed at members of the public going about their business. A knife is an inherently dangerous item and the way in which the appellant mimicked the cutting of his throat would, as the respondents point out, cause significant apprehension and fear to those involved.
[19] Richardson v Pickett [2008] WASC 203.
I do not necessarily accept that the appellant's offending was less serious than King or Hayward. Whilst the facts in King and Hayward could be said to have some comparable features, at least in respect of Hayward there appear to have been mitigatory circumstances personal to the offender that are not raised in this matter.
It is correct to say that if this was the only offence for which the appellant was being sentenced on the day in question that a term of immediate imprisonment may not have been imposed if the appellant could be found to be a person who was otherwise of good character. However, the appellant is not of good character and this offence was committed by the appellant within three weeks of being sentenced to a 12 month community based order. This personal circumstance is an aggravating factor and demonstrates an entrenched attitude by the appellant of disobedience to the law, and enhances the need for personal deterrence.
Relevantly, s 7(2)(b) and (c) of the Sentencing Act provide that an offence is not aggravated by the fact that the offender has a criminal record or a previous sentence has not achieved the purpose for which it was imposed. However, a lengthy criminal record results in no mitigation for good character. Further, his criminal history was indicative of the need for personal deterrence. This is because he has history of prior convictions for similar offences and has a lengthy criminal history of violent offences.
On its own the length of the term of imprisonment is not manifestly excessive. In considering whether the sentence of imprisonment for the offence of being armed in public so as to cause fear was manifestly excessive, it is also appropriate to take account of the place of that sentence in the total effective sentence. In Kabambi v The State of Western Australia, the Court of Appeal observed:[20]
As was noted in Giglia v The State of Western Australia:
'A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.'
[20] Kabambi v The State of Western Australia [2019] WASCA 44 [28] (citations omitted).
This point is raised and considered when considering ground 3 of the appeal.
In this matter, the sentence for this offence is cumulative on the other counts. This was appropriate because this offence was unrelated to the offences that occurred on 2 April 2020.
In light of the fact that the circumstances of this offence were not at the lower end of the type of offences of this type, together with the aggravating circumstance that the offence was committed when the appellant was subject to a community based order, it cannot be found that a different sentence should have been imposed by the sentencing magistrate.
For these reasons, ground 1 of the appeal has no prospect of success and leave to appeal on this ground should be refused.
Ground 2 - whether the sentence for the offence of assault causing bodily harm was manifestly excessive as to type of sentence?
The appellant claims in this ground that the sentence imposed for the offence of assault causing bodily harm was manifestly excessive in the type of sentence imposed taking into account 'the reasonable expectation' the appellant had when he was given a chance to remain in the community if he complied with the bail conditions imposed on 3 July 2020 after spending 3 months in custody, and by the fact that he had abided by all of the bail conditions.
The appellant submits that the following factors relevant to whether the sentence of imprisonment could be suspended were not given sufficient weight by the magistrate, in that they were either not referred to, misunderstood, or inappropriately dismissed as insignificant:
(a)the compliance of the appellant since he had been housed on bail;
(b)the time the appellant spent in custody;
(c)the medical and housing reasons for the appellant's previous non‑compliance with the community based order; and
(d)the clear indications that the appellant, a long term habitual drug dependent offender who had stopped using drugs, found a home, and had stopped offending albeit only for 7 weeks, was now responding positively to criminal justice incentives, and that this incentive could be likely maintained with an appropriate community disposition.
The appellant submits that the reasons given by the sentencing magistrate for not suspending the sentence of imprisonment which was because the facts were so serious that suspension was not appropriate, did not address the question of whether immediate imprisonment was the only disposition that could achieve the necessary sentencing outcomes of personal and general deterrence and the protection of the community.
Insofar as this ground alleges that the sentence was manifestly excessive, taking into account 'the reasonable expectation' the appellant had of being given a chance to remain in the community if he complied with his bail conditions whilst on remand, this argument cannot be accepted. As the respondents point out, it is wrong in principle. This is not a factor relevant to the assessment of whether a sentence is manifestly excessive.
However, the factors relevant to the assessment of whether the sentence is manifestly excessive do include factors personal to an accused, which factors in this matter include the compliance of the appellant whilst on bail, the recent steps that he had taken to address the triggers of his offending and other factors personal to him, such as the fact that he now had stable accommodation and a significant relationship, which in itself could be characterised as a protective relationship.
The sentencing magistrate did, however, have regard to these factors personal to the appellant. Consequently, what appears to be raised in this ground of appeal is a weighting error in the exercise of the sentencing discretion.
In Spirovski v The State of Western Australia, the Court of Appeal stated the principle that a weighting error is not, of itself, a ground of appeal which justifies appellate intervention in the sentencing discretion:[21]
An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet; Dinsdale v The Queen; Vagh v The State of Western Australia; Pedersen v The State of Western Australia. A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, 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.
[21] Spirovski v The State of Western Australia [2017] WASCA 230 [35] (footnotes omitted).
In this matter, his Honour expressly considered whether the sentence could properly be suspended and in doing so gave due and proper consideration to the question whether a disposition less than immediate imprisonment would be commensurate with the seriousness of the offending.
In Drage v The State of Western Australia, the Court of Appeal recently restated the principle that there is no tariff for the offence of assault causing bodily harm, aggravated or otherwise.[22]
[22] Drage v The State of Western Australia [2021] WASCA 6 [37].
In assessing seriousness of an offence of assault causing bodily harm regard can be had to comparable cases in relation to offences with comparable factual elements and comparable maximum penalties.[23] If a particular sentence is broadly consistent with comparable cases then no error can arise.
[23] Drage v The State of Western Australia [2021] WASCA 6 [46].
As to whether sentences involving offences of assault causing bodily harm can be said to be comparable, in Spirovski v The State of Western Australia the Court of Appeal observed:[24]
[24] Spirovski v The State of Western Australia [2017] WASCA 230 [41] ‑ [46] (footnotes omitted).
In Mourish v The State of Western Australia, McLure JA (Steytler P & Wheeler JA agreeing) summarised the sentencing dispositions in various cases relating to the offence of assault occasioning bodily harm, contrary to s 317(1). Where the case was decided before the commencement of the transitional provisions, her Honour converted the sentences to post-transitional sentences and recorded the pre‑transitional sentence in brackets. The relevant cases, as set out by her Honour, were these:
'Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.
Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.
Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.
Hooper v The Queen (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.
Harvey v Ingles (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.
Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.
The State of Western Australia v Anderson [2004] WASCA 157 ‑ the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.
Robinson v Smith [2005] WASC 99 ‑ the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending [12].'
The appeals in Robinson, Poletti, Mical, Harvey and Johnson were from decisions of magistrates who were unable to impose a term of imprisonment exceeding 2 years. Also, those cases (apart from Robinson) and the cases of Mitchell and Anderson involved pleas of guilty.
In Holden v The State of Western Australia, Wheeler JA said that it is difficult to discern a 'tariff' for the offence of assault occasioning bodily harm because of the great variation in the circumstances in such cases. Her Honour added, however, that:
'[I]n cases which have involved pleas of guilty, a post‑transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].'
We have had regard to numerous sentencing dispositions for offences against s 317(1) of the Code, without circumstances of aggravation, including the relevant dispositions in Mourish; The State of Western Australia v Camilleri; Holden; Wiltshire v Mafi; The State of Western Australia v Cheeseman; Langdon v Kelemete‑Leoli‑McLean; Ali v The State of Western Australia; Clarke v The State of Western Australia [No 2]; Carrick v The State of Western Australia; Allen v The State of Western Australia; and the relevant decisions referred to in those cases.
It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
Consequently, there is no broad range or tariff for sentences of sentences for assault causing bodily harm given there is a very wide variety of circumstances that can arise both in relation to the nature of the offence and the circumstances of aggravation,[25] if any.
[25] Tunney v The State of Western Australia [2013] WASCA 286 [29]; Duncan v The State of Western Australia [2018] WASCA 154 [52]; Drage v The State of Western Australia [2021] WASCA 6 [40].
In a decision of the Court of Appeal concerning an appeal against sentence for an offence of assault occasioning bodily harm where the aggravating factor was domestic violence in Duncan v The State of Western Australia (which contemporary sentencing standards require firmer sentences for such offences), the court observed in respect of cases of assaults occasioning bodily harm not involving victims in domestic relationships with the offender, that:[26]
We have also considered other, more recent, authorities, concerning sentences for assault occasioning bodily harm, including The State of Western Australia v BLM, Carrick v The State of Western Australia, Allen v The State of Western Australia, and Spirovski v The State of Western Australia. The circumstances of the offending, and of the offender, in each case were very different from those here, but they nevertheless assist in discerning contemporary sentencing standards for assault occasioning bodily harm.
By way of example, in Carrick the offender went to a home of a third party with two other offenders, and assaulted a victim, with whom his co-offenders had previously had an argument. The offender punched the victim five times to the face. The victim fell to the ground after the first punch. He suffered relatively minor injuries to his nose and mouth. While general deterrence was considered an important factor in the sentencing, there were significant mitigating factors. The offender received a 10% discount for his late plea of guilty, he was young, he was remorseful, he had the support of his family and he had co‑operated in the prosecution of a co-accused. On appeal, this Court resentenced him to 14 months' immediate imprisonment.
In Spirovski, the offender, who was a security officer working at a tavern, punched the complainant in the face, with such force that the blow broke the nasal bones around the complainant's nose, and knocked the complainant to the ground. The appellant was convicted following a trial. While the offence was regarded as serious, the offender was of prior good character, had a strong work ethic, good support in the community, and was given some credit for his regret at committing the offence. He was sentenced to 18 months' immediate imprisonment. An appeal, on the basis that the sentence should have been suspended, was dismissed.
[26] Duncan v The State of Western Australia [2018] WASCA 154 [47] ‑ [49] (footnotes omitted).
In this matter, the appellant is not a young man. He has an extensive criminal record of violent offences, which include past convictions for offences of assault, threats to kill and being in possession of an article with intent to cause fear, and being armed in a way that may cause fear. He was given a 25% discount for his early plea of guilty. Although he admitted the factual circumstances of the offence, it is clear that he showed no remorse for the serious assault on a vulnerable victim. All of these circumstances point to a need for personal deterrence.
The appellant blames his victim for the assault. Although the appellant claims that he believed that the victim had sexually assaulted him whilst he was intoxicated, nothing was put before the sentencing magistrate to show that that belief at the time of the offence was committed had a proper foundation.
This offence was not only committed during the period the appellant was subject to a community based order, but also when he was on bail for the offence of being armed to cause fear. These circumstances are an aggravating circumstance.
Clearly, as the sentencing magistrate found, the assault on the victim was very serious in that the victim could not defend himself, the assault was repetitive in that the appellant punched the victim in the head and in the chest, knocked the victim to the ground and punched him again a number of times and then made the threats to kill or stab the victim while holding a knife. These were significant factors in determining the objective seriousness of the offence and whether it was appropriate that a term of immediate imprisonment be imposed.
His Honour was entitled, on the basis of the facts admitted by the appellant, to find that the appellant's conduct was so serious that the matters personal and mitigatory to the appellant were outweighed by the seriousness of the offence. A sentence of 12 months' immediate imprisonment (discounted by the time spent on remand and the early plea of guilty) was not inconsistent with the standards of the sentencing customarily observed in relation to offending of this kind because the appellant's offending was a very serious offence of its type.
In these circumstances, the sentence was within the range of sentences open to the sentencing magistrate, and no error is demonstrated.
For these reasons, ground 2 has no prospect of success and leave to appeal on this ground should be refused.
Ground 4 - Did the sentencing magistrate err by not taking into account as a mitigatory factor that the appellant was provoked as he believed the victim to the assault causing bodily harm had sexually assaulted him, or denied the appellant the opportunity to make submissions about the weight that should be given to the raised provocation?
The prosecution must establish an aggravating circumstance beyond reasonable doubt and the offender must establish a mitigating circumstance on the balance of probabilities.[27] A mitigating circumstances is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case.
[27] Baker v The State of Western Australia [2020] WASCA 117 [41].
The appellant's belief is referred to in the psychological report and counsel for the appellant at first instance referred to it in the context of explaining why the appellant had committed the offences against the victim, and not as an excuse.
As the respondents point out, if the appellant wishes to assert that the belief he held at the time of the offending was mitigating, it was incumbent on the appellant to both submit that it was mitigating and to provide his Honour with sufficient information to establish the mitigating circumstance on the balance of probabilities.
What is recorded in the psychological report and was repeated in the submission by the appellant's counsel is simply that he had a belief that he was sexually assaulted, not that he had been sexually assaulted. The mere assertion of the existence of a belief is not, in and of itself, sufficient to establish that the belief ought to result in a less severe sentence. Much will depend on precisely what the appellant believed had been done, the circumstances giving rise to that belief, whether the belief was reasonably held, and the proportionality of the response to the purported belief.
The belief of the appellant was a fact put to the court for consideration by his Honour. It cannot be said to be a matter that his Honour had no regard to, albeit it was not put to his Honour as a circumstance of mitigation but simply as a factual context.
Further, the serious nature of the assault, together with the serious threats to stab and kill and stealing could not be said to be reduced by the appellant's belief. Put more simply, the appellant's belief without any evidence as to what was done could not be a mitigating factor of any weight.
For these reasons, ground 4 has no prospect of success and leave to appeal on this ground should be refused.
Ground 3 ‑ Does the total effective sentence infringe the totality principle?
The appellant contends that his total effective sentence is 21 months' imprisonment, discounted by 3 months he had spent in custody on remand and a reduction for early pleas of guilty. However, the time spent in custody cannot at law be regarded as part of the total effective sentence. This is because the sentence was not backdated prior to 20 August 2020. However, the discount applied for time spent in custody is a matter that is to be considered when determining whether the totality principle has been infringed.
The appellant submits that:
(a)given his compliance with the strict home detention bail conditions and his change of living circumstances, his sentence should have been suspended conditionally, which sentence if suspended could have achieved all the sentencing outcomes that would have been in the best interests of the community; and
(b)that the total sentence is higher than necessary to achieve those objectives.
The appellant's submissions focus on his personal circumstances and the sentencing objectives of rehabilitation only. However, part of the sentencing objectives is also personal and general deterrence of an offender.
The sentence of assault causing bodily harm of 12 months' imprisonment (the head sentence), together with the sentences for threats to injure or harm and stealing of 6 months and 2 months respectively (being 20 months), when regard is also had to the fact that the appellant was credited for 3 months of time in custody on remand, the terms imposed for these offences might be thought to be high. However, the sentences for the threats to injure or harm and stealing are to be served concurrently with the head sentence, which effect moderates the impact of each of these individual sentences. This is because for the conduct constituting these three offences the total effective sentence is 12 months' imprisonment, which when regard is had to the totality of the appellant's conduct constituting the three offences cannot be said to be high.
The question is whether the addition of a cumulative term of 6 months on the head sentence for the offence of being armed to cause fear resulted in the total effective sentence being unreasonable or plainly unjust.
As the respondents point out, when all of the offences subject of the total effective sentence are considered together, the appellant's overall offending constituted two episodes of threatening, intimidating and violent behaviour towards members of the public.
The seriousness of the offending on the count of being armed to cause fear was such that a term of immediate imprisonment was warranted and it was appropriate that the term be cumulative on the head sentence because it was a separate and unrelated offence of violent behaviour towards members of the public which was unrelated in time and circumstance to the other three offences.
However, the total effective sentence for all five offences of 18 months' imprisonment, was more than what was required to appropriately achieve the sentencing aims of proper punishment, retribution, protection of the public, general and personal deterrence and the desirability of accommodating the wish of the appellant to rehabilitate. Thus, the total effective sentence by the addition of the cumulative term of 6 months on the head sentence for the offence of being armed to cause fear infringed the first limb of the totality principle.
A sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences.[28]
[28] The State of Western Australia v AHD [2021] WASCA 13 [53] (Buss P); see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
In this matter it is appropriate to order that the sentence for the offence of being armed so as to cause fear be reduced rather than to order the term of imprisonment for this sentence be served partially concurrently with the other individual sentences because of the disconnect between the time and factual circumstances of offence of being armed so as to cause fear with the other offences.
Having regard to all relevant sentencing considerations, including those referable to the offender personally, including his desirability to rehabilitate himself, personal deterrence and general deterrence, an appropriate sentence for the offence of being armed so as to cause fear is a term of immediate imprisonment of 4 months.
It is established that where the discretion of a sentencing magistrate or judge has miscarried in respect of one component of a sentence, including one of the individual sentences forming part of a total effective sentence, the whole of the sentencing judge's sentencing decision, including all of the sentences, must be set aside and the offender resentenced.
However, in the exercise of this court's discretion to resentence the appellant, other than the sentence imposed on the offence of being armed so as to cause fear, it is clear that no different sentence should be imposed in respect of any of the sentences. Consequently, except in respect of Charge BU 1345/2020, I have exercised my sentencing discretion afresh by imposing the same sentences for each of the charges set out in the table to [4] of these reasons.
For these reasons, leave to appeal on ground 3 should be allowed, and the appeal allowed.
Postscript
At the hearing of the appeal, the appellant tendered into evidence in the appeal his Department of Justice 'Individual Management Plan' dated 23 December 2020 in which it is recorded that it was recommended that he be included in the Addiction Offending ‑ Pathways Program and Violent Offending ‑ Intensive Program, but that there is no available booking for him to attend prior to his earliest date of release on 20 May 2021. This is unfortunate, as the appellant is willing and keen to engage in these programs.
It is notable to observe that the author of the psychological report prepared for sentencing stated that the appellant is likely to gain substantial benefit from psychological intervention, and that he will require extensive reintegration support on release from prison.
In light of the matters set out in the psychological report and the fact that the appellant has not been able to take part in the recommended rehabilitation programs through no fault of his own, the court notes that it is important that the appellant be provided with assistance on his release from prison to make the changes required of him to address his triggers for offending.
ANNEXURE 1 - COMBINED SCHEDULE OF OTHER CHARGES BEFORE THE SENTENCING MAGISTRATE ON 21 AUGUST 2020
Charge No
Offence
Details
Max Penalty[29]
Sentence
BU 6461/19
Stealing s 378 Criminal Code
23 July 2019
Stole one bottle of wine valued at $19.99 from Liquor Barons Bunbury
$250 fine
BU 6462/19
Possession of stolen or unlawfully obtained property s 417(1) Criminal Code
28 July 2019
Possessed a Commonwealth Bank debit card that had been stolen from a car parked outside a home in Bunbury some hours earlier
12 Month CBO Resentence: $100 fine
BU 6463/19
Gains benefit by fraud s 409(1)(c) Criminal Code
28 July 2019
Telstra mobile phone $69.00
12 month CBO Resentence: $100 fine
BU 6464/19
Gains benefit by fraud s 409(1)(c) Criminal Code
28 July 2019
Food items and cigarettes to the value of $71.95
12 month CBO Resentence: $100 fine
BU 6465/19
Gains benefit by fraud s 409(1)(c) Criminal Code
28 July 2019
Telstra prepaid mobile phone credit to the value of $90.00
12 month CBO Resentence: $100 fine
BU 6466/19
Gains benefit by fraud s 409(1)(c) Criminal Code
28 July 2019
Various items valued at $60.98
12 month CBO Resentence: $100 fine
BU 6467/19
Gains benefit by fraud s 409(1)(c) Criminal Code
28 July 2019
Two Starcash cards with a total value of $75.00
12 month CBO Resentence: $100 fine
BU 6468/19
Gains benefit by fraud s 409(1)(c) Criminal Code
28 July 2019
A coffee and a mobile phone with a total value of $71.00
12 month CBO Resentence: $100 fine
BU 1344/20
Stealing s 378 Criminal Code
4 March 2020
Stole various personal items of nominal value from a car parked outside a medical centre.
$200 fine
BU 1898/20
Trespass s 70A(2) Criminal Code
27 March 2020
Went to a community centre attached to a childcare centre and tried to open doors and windows
$300 fine
BU 1899/20
Possess a prohibited drug (Cannabis) s 6(2) Misuse of Drugs Act 1981
27 March 2020
Police apprehended the appellant who was found to have approximately 10.6g of cannabis in his possession.
$200
BU 1900/20
Obstructing public officers s 172(2) Criminal Code
27 March 2020
As police were escorting the appellant to the police car he attempted to run away.
$500 fine
[29] Maximum penalty only included for the offences subject of this appeal.
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 Smith
26 FEBRUARY 2021
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