DAVIES v The State of Western Australia

[2021] WASCA 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 71

CORAM:   MAZZA JA

MITCHELL JA

VAUGHAN JA

HEARD:   22 MARCH 2021

DELIVERED          :   30 APRIL 2021

FILE NO/S:   CACR 126 of 2020

BETWEEN:   DONALD WADE DAVIES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   HERRON DCJ

File Number            :   IND 2122 of 2016 & IND 620 of 2020

Catchwords:

Criminal law - Appeal against sentence - Assault causing bodily harm - Appellant convicted after entering plea of guilty - Appellant sentenced to 3 years' immediate imprisonment - Whether sentence manifestly excessive

Legislation:

Criminal Code (WA), s 317(1)(b)
Sentencing Act 1995 (WA), s 84D(1), s 84F

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	S Watters
Respondent	:	L M Fox SC

Solicitors:

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

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

Allen v The State of Western Australia [2017] WASCA 203

Boyle v The State of Western Australia [2010] WASCA 97

Carrick v The State of Western Australia [2017] WASCA 175

Castrilli v The State of Western Australia [2019] WASCA 135

Drage v The State of Western Australia [2021] WASCA 6

Duncan v The State of Western Australia [2018] WASCA 154

Eric v Bull [2014] WASC 342

Gaskell v The State of Western Australia [2018] WASCA 8

Giglia v The State of Western Australia [2010] WASCA 9

Holden v The State of Western Australia [2009] WASCA 50

Jackamarra v The State of Western Australia [2019] WASCA 150

Kilner v The Queen [1999] WASCA 189

McCoombe v The State of Western Australia [2016] WASCA 227

Mourish v The State of Western Australia [2006] WASCA 257

QJS v The State of Western Australia [2015] WASCA 9

R v Kilic [2016] HCA 48; (2016) 259 CLR 256

Spirovski v The State of Western Australia [2017] WASCA 230

The State of Western Australia v BKJ [2019] WASCA 136

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Camilleri [2008] WASCA 217

The State of Western Australia v Cheeseman [2011] WASCA 15

Tunney v The State of Western Australia [2013] WASCA 286

Wiltshire v Mafi [2010] WASCA 111

JUDGMENT OF THE COURT:

Overview

1. This is an application for leave to appeal against sentence.

2. The appellant was convicted, on his plea of guilty, of assault causing bodily harm contrary to s 317(1)(b) of the Criminal Code (WA) (Code) (count 1). In pleading guilty to count 1 the appellant also admitted that by that offending he had breached a conditional suspended imprisonment order (CSIO) thus occasioning the operation of s 84D(1) and s 84F of the Sentencing Act 1995 (WA). The CSIO provided for a sentence of 16 months' imprisonment conditionally suspended for 16 months with program and supervision requirements. The CSIO was imposed on the appellant's convictions, following pleas of guilty, for offences of aggravated burglary and criminal damage.

3. The maximum penalty for count 1 is 5 years' imprisonment.

4. On 13 August 2020 the sentencing judge imposed a sentence of 3 years' immediate imprisonment on count 1. In so ordering the sentencing judge allowed a discount of 25% under s 9AA of the Sentencing Act.  In relation to the breach of the CSIO the State had sought that the sentencing judge order that the appellant serve the 16 month term of imprisonment.  The sentencing judge declined to so order - finding that it would be unjust to do so in view of all the circumstances that had arisen - and instead imposed a fine of $1,000 and made no further order in respect of the breach of the CSIO.

5. There is no complaint by the appellant as to the sentencing judge's disposition in relation to the CSIO.  The single proposed ground of appeal alleged that the sentence imposed on count 1 was manifestly excessive in length.

6. For the reasons that follow, while we would grant leave to appeal, the appeal should be dismissed.

The circumstances of the offending

1. There is no challenge to the sentencing judge's factual findings at the time of passing sentence.  The sentencing judge's observations included findings as to the circumstances of the offence of assault causing bodily harm committed by the appellant and the earlier offending the subject of the CSIO.  The following summary is based on the sentencing judge's remarks, as is the summary as to the appellant's personal circumstances.

The offending the subject of the CSIO

1. The CSIO was imposed on 10 August 2017 in respect of offending committed by the appellant at Onslow on 11 September 2016 consisting of burglary and criminal damage.  The same incident saw the appellant convicted, on his plea of guilty, of assault causing bodily harm.  The assault conviction was dealt with in the Magistrates Court.  The appellant was fined $800 for the assault causing bodily harm.

2. While intoxicated the appellant twice entered the hotel room of a young female.  On the first occasion the appellant knocked, pushed past the occupant when the door was opened, but left when told it was not his room and being asked to leave.  On the second occasion the occupant awoke to find the appellant in her room.  The appellant was behaving violently and bizarrely.  He kicked and tossed furniture, kicked walls and punched holes in wall panelling.  The occupant was terrified.  Others came to her rescue.  The appellant left.  He was then forcibly restrained by the on-duty hotel manager.  In the course of being restrained the appellant committed the assault by punching the manager in his face and breaking the manager's thumb.

3. In imposing the CSIO the then presiding judge (Petrusa DCJ) explained to the appellant that if he breached the order by reoffending he would be liable to be ordered to serve the full 16 months of imprisonment.

4. The sentencing judge observed that the appellant had generally performed well on the CSIO.  The appellant had completed substance abuse counselling.  He had also maintained regular employment.  The CSIO was due to expire on 9 December 2018 - approximately one month after the offending the subject of count 1.

The offending the subject of count 1

1. On the night of 3 November 2018 the appellant was at the accommodation facilities of a mine site out of Port Hedland.

2. The appellant had been drinking and socialising with a group of men at the accommodation facilities.  The appellant later informed a psychologist that he (the appellant) had been drinking over a four to five hour period and told the writer of a pre-sentence report that he had been drunk.  The appellant became involved in a physical fight with another worker.  Two different men, one of whom was B, broke up the fight and held the appellant until he calmed down.  The appellant continued to yell abuse at all the other parties when they eventually walked away from him.

3. Later the same night - at about 12.30 am on 4 November 2018 - B was seated on a chair outside his accommodation unit.

4. The appellant approached B holding two rocks.  The appellant struck B to the side of the head with one of the rocks while B was still sitting down and unprotected.  It was a forceful blow.  One witness described it as a 'big swing and a big hit'.  B was momentarily knocked unconscious and suffered concussion.

5. B was taken to hospital in Port Hedland before being flown to hospital in Perth.  B suffered two skull fractures, swelling on the brain and bleeding on the brain.  B also suffered a laceration to the head which was stitched.  B spent a number of days in hospital receiving treatment and undergoing observation.  B suffered severe and recurrent headaches for which he has been prescribed painkillers.  B was also given medication to prevent seizures.

6. B was unfit for work for a period of time - suggested to be 'several months'.  B had, however, returned to work by the time of the appellant's sentencing and in that respect made a reasonable recovery.  The sentencing judge sentenced the appellant on the basis that the injuries were not of a permanent nature.

The appellant's personal circumstances

1. The appellant was 29 at the time of the offending and 31 at the time of sentencing.

2. The appellant was born in Kalgoorlie.  His parents separated when the appellant was young and the appellant had minimal contact with his father throughout his early childhood.  Nevertheless, the appellant regarded his childhood as being positive.  He described a reasonably stable and supportive family upbringing.  The appellant attended primary school and completed high school graduating in the vocational stream.

3. The appellant had been in a long-term on and off relationship since his mid-teenage years.  The relationship had been marred by domestic violence.  At the time of sentencing the appellant had two children - aged 12 and 9 - but was separated.  Although separated, the appellant's former partner was supportive of him.  So too the appellant's mother remained supportive of him.

4. Since leaving school the appellant had worked regularly - mainly in a FIFO capacity on mine sites.

5. The appellant had a prior criminal record.  From 2007 to 2009 he committed various driving offences including alcohol related offences.  In 2010 the appellant was convicted and fined for disorderly behaviour.  There was also a cannabis related conviction.  The appellant did not reoffend until the 2016 offences the subject of the CSIO.

6. The appellant was in good physical health.  However, as to mental health, the appellant said that he struggled to cope with stress and his FIFO lifestyle.  The appellant admitted that he would regularly 'binge drink' after work to intoxication and that when he did so he had trouble controlling his temper.  The appellant had also, prior to the offending, seen a psychiatrist who had prescribed anti-depressants.  The appellant continued to drink notwithstanding that he was aware that drinking alcohol adversely impacted on the effectiveness of the medication.  The appellant reported drinking regularly throughout his adult years; and regularly drinking to excess and becoming intoxicated.  The appellant accepted that he was unable to stop drinking once he started.

7. As a requirement of the CSIO the appellant had attended counselling, in 2017, to address his excessive drinking.

8. There was psychological evidence before the sentencing judge.  The first psychologist concluded that the appellant used alcohol as a way to cope with stress and upheaval.  When intoxicated the appellant struggled to exercise self-control and restraint - he had difficulty controlling his anger.  The psychologist opined that, as the appellant was heavily intoxicated at the time of the 2018 offending, his thinking was impaired which compromised the appellant's judgment and capacity to control his emotions and anger.  After the 2018 offending the appellant had become more accepting of the fact that alcohol had caused problems in his work and home life.  Nevertheless, the first psychologist considered that the appellant showed limited insight into how to deal with and cope with various issues in his life, particularly at moments of stress.

9. The second psychologist was a treating psychologist who had seen the appellant for 11 counselling sessions after the 2018 offending.  That psychologist reported the appellant as referring to events of violence throughout his childhood.  The psychologist opined that the appellant had grown up in a culture that had normalised violence and he saw violence as a natural event.  The psychologist had administered cognitive behavioural therapy.  The appellant had made some positive developments, but, having limited insight, still had a way to go in terms of improving his capacity to manage his emotions including his anger.

10. The second psychologist considered that the appellant would benefit from further psychological therapy.

The sentencing disposition

1. The sentencing judge recounted the circumstances of the offending (ts 46 - 47) and the appellant's personal circumstances (ts 49 - 54).  Relevant in both of these respects were reports before the sentencing judge from the two psychologists (ts 47, 51 - 54) and a pre-sentence report (ts 47 - 48, 53 - 54).  The sentencing judge also referred to a letter he had received from the appellant (ts 54) and numerous character references submitted on behalf of the appellant (ts 54 - 55).

2. The sentencing judge noted the maximum penalty for the offence (ts 48).  In terms of the seriousness of the offending his Honour referred to (ts 48 - 49):

   1.The appellant having armed himself with the two rocks.

   2.The absence of any threat or provocation on the part of B.

   3.The appellant approaching B.

   4.B being vulnerable by reason of being in a seated position.

   5.The force of the blow.

   6.The serious injuries suffered by B.

3. The sentencing judge observed that it was fortunate that B did not suffer more severe injuries which could have caused permanent disability or even death (ts 48).

4. The sentencing judge also referred to the aggravating circumstance that at the time of the offending the appellant remained subject to the CSIO (ts 49).

5. In terms of mitigating circumstances, the sentencing judge referred to:

   1.The plea of guilty at an early opportunity (ts 49 - 50) - for which his Honour allowed a discount of 25% pursuant to s 9AA of the Sentencing Act (ts 56).

   2.The appellant having taken some steps towards rehabilitation by seeking psychological counselling for anger management after being charged with the 2018 offending (ts 49, 51 - 53).  (The appellant had also attended counselling in 2017 to address his excessive drinking (ts 51); but it appeared that this had been ineffective given his subsequent offending (ts 52)).

   3.The appellant had demonstrated remorse, expressing empathy for and apologising to B, and acknowledged the seriousness of his offending (ts 50, 54).

6. The sentencing judge identified that personal deterrence was an important sentencing consideration in the appellant's case (ts 55) - earlier observing, by reference to the appellant's prior criminal record, that the appellant had a disregard for the law which appeared to be related to a serious alcohol problem which had not been adequately addressed (ts 51).  In that respect his Honour expressed surprise that one of the psychologists had assessed the appellant's risk of reoffending as low.  The sentencing judge noted the common risk factor of alcohol abuse which had precipitated the offending on each occasion in 2016 and 2018 (ts 52).  His Honour identified that the appellant's continued reliance on alcohol and binge drinking increased the risk of him offending by losing his temper and becoming involved in violence (ts 52).

7. Mention was also made of general deterrence (ts 55 - 56).

8. The sentencing judge referred to general sentencing considerations in an orthodox way (ts 56).  His Honour agreed with a characterisation of the offending as 'serious'.  His Honour concluded that only a sentence of imprisonment was appropriate and that it would be inappropriate to suspend the term of imprisonment (ts 56).  Ultimately the sentencing judge sentenced the appellant to a term of three years' immediate imprisonment.  His Honour ordered that the appellant be eligible for parole and backdated the sentence to 20 May 2020 to take into account the time the appellant had already spent in custody (ts 56 ‑ 57).

9. The sentencing judge dealt separately with the breach of the CSIO.  His Honour identified, correctly, that he was required to sentence the appellant to 16 months' immediate imprisonment (or part of that term) unless he decided that it would be unjust to do so.  The sentencing judge decided not to order the appellant to serve the term of imprisonment that was suspended.  Two reasons were given.  First, the sentencing judge was satisfied that the appellant had 'performed well' and the reoffending was only about one month before the CSIO was due to expire.  Second, the sentencing judge referred to the totality principle saying that: '[t]o impose a further term of imprisonment … in relation to the 2016 offending would breach the principle of totality' (ts 58).

10. Accordingly, in relation to the breach of the CSIO the sentencing judge imposed a fine of $1,000 and made no further order.

The ground of appeal and the parties' contentions

1. There is a single proposed ground of appeal.  The appellant claims that the term of 3 years' imprisonment on count 1 is manifestly excessive in its length.  On 8 October 2020 Mazza JA referred the question of leave to appeal to the appeal hearing.

2. In support of the allegation of implied error in the imposition of a sentence of 3 years' immediate imprisonment, the appellant emphasised: (1) the maximum penalty of 5 years' imprisonment; and (2) that his early plea of guilty had resulted in a 25% discount pursuant to s 9AA of the Sentencing Act.  The appellant submitted that the term of 3 years' immediate imprisonment was 'out of kilter' with sentences customarily imposed for offences of this nature.

3. The appellant referred to six authorities: Castrilli v The State of Western Australia;[1] Duncan v The State of Western Australia;[2] Spirovski v The State of Western Australia;[3] Holden v The State of Western Australia;[4] Carrick v The State of Western Australia;[5] and Eric v Bull.[6]  The appellant submitted that the sentence of 3 years' immediate imprisonment was outside the range to be distilled from those 'broadly comparable' cases and being thus manifestly excessive he had established error as the sentence was unreasonable or plainly unjust.

   [1] Castrilli v The State of Western Australia [2019] WASCA 135.

   [2] Duncan v The State of Western Australia [2018] WASCA 154.

   [3] Spirovski v The State of Western Australia [2017] WASCA 230.

   [4] Holden v The State of Western Australia [2009] WASCA 50.

   [5] Carrick v The State of Western Australia [2017] WASCA 175.

   [6] Eric v Bull [2014] WASC 342.

4. Counsel for the appellant pointed to the 3 year sentence, as against a maximum penalty of 5 years' imprisonment, in circumstances where the appellant had been allowed a 25% discount for an early plea of guilty - and, in counsel's submission, there ought to have been some further allowance for mitigating circumstances.  This suggested, according to counsel for the appellant's submission, that the sentencing judge had effectively treated the offending as being in the worst category of this kind of offending.  Counsel for the appellant contended that in all the circumstances this went too far.[7]

   [7] Appeal ts 4 - 5, 8.

5. The State criticised the appellant's reliance on the authorities that were referred to on his behalf and said that they did not demonstrate that the appellant's sentence was manifestly excessive.  The State pointed to various distinguishing factors which meant that those authorities were not apt comparators to identify customary sentencing standards for an offence of the kind committed by the appellant.

6. The State accepted that the appellant's offending was not in the 'worst category' in a Kilic sense.[8]  Otherwise, although accepting that a sentence of 3 years' imprisonment is a 'very significant' sentence of imprisonment for an offence of assault causing bodily harm, the State submitted that the appellant's offence was a very serious example of its type - falling into the higher bracket of serious cases that came close to but fell just short of a Kilic worst category case.[9]

   [8] Referring to R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18].

   [9] Appeal ts 11 - 12.

7. In support of that submission the State emphasised the circumstances of the offending and the injuries suffered by B.  The State said that it was appropriate for the sentencing judge to have regard not only to the injuries sustained but also the risk of suffering even more serious injury.  The State contended that personal deterrence was a significant consideration - all the more so when the appellant had breached the CSIO by reoffending in committing the assault causing bodily harm.  The State submitted that in all the circumstances the sentence of 3 years' immediate imprisonment was not unreasonable or plainly unjust.

1. The State also contended that it was important to recognise that the total effective sentence imposed for all the appellant's offending - both in 2016 and 2018 - was 3 years' imprisonment and a $1,000 fine.  This was said to be proportionate to the appellant's overall criminality.  Accordingly, even if there was error in the sentence imposed on count 1, no different lesser total effective sentence should be imposed.[10]

   [10] Appeal ts 15.

Applicable legal principles on the appeal

Appellate intervention in respect of sentence

1. On countless recent occasions, without seeing the need to recite authority given that the propositions are so well established, this court has stated to the effect that:

   1.Sentencing is a discretionary exercise.  That discretion is of fundamental importance.  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.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.

   2.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.  A ground of appeal which alleges that a sentence is manifestly excessive or manifestly inadequate asserts an implied error.

   3.In determining whether a sentence for an individual offence is manifestly excessive or manifestly inadequate, the sentence should be viewed in light of: (a) the maximum penalty for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of offences of that type; and (d) the offender's personal circumstances.

   4.The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion in a particular case.  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 an appellate court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not, of itself, fix the upper or lower limit of the range.

2. The first of these principles has added force in the present case.  The discretion conferred on a sentencing judge is of particular importance where the sentence is for an offence which may be committed in a very wide range of circumstances and which may involve widely differing degrees of culpability on the part of an offender.  The offence of assault causing bodily harm is a paradigm example of such an offence.[11]

   [11] Duncan v The State of Western Australia [30].

3. The ground advanced by the appellant alleges implied error.  Accordingly, the appellant must demonstrate that the sentencing outcome was not open to the sentencing judge in the proper exercise of his Honour's discretion.  It must be shown that the exercise of the sentencing judge's discretion resulted in an outcome that was unreasonable or plainly unjust - thereby evincing some substantial wrong such that there must have been some misapplication of principle by the sentencing judge.

The relevance of the appellant's total effective sentence

1. This is a convenient juncture to address the State's submission as recorded at [45] above - one referred to orally at the appeal hearing as the Giglia point.[12]  In Giglia v The State of Western Australia Owen JA (McLure & Pullin JJA agreeing) stated:

   [G]enerally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall 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, 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.  The real question is whether the total effective sentence is excessive.[13]

   [12] Appeal ts 12.  Referring to Giglia v The State of Western Australia [2010] WASCA 9.

   [13] Giglia v The State of Western Australia [40].

2. That passage has been explained by Buss P in Gaskell v The State of Western Australia.  The reference to a 'heavy individual sentence' being 'softened' by an order for concurrency or a 'relatively light sentence' having 'increased severity' by an order for accumulation was not including within those descriptions individual sentences that are manifestly excessive or manifestly inadequate.[14]  Accordingly, as was explained by the court in The State of Western Australia v BKJ, Owen JA was not saying that the court will decline to interfere with a sentence that is manifestly excessive or manifestly inadequate where it forms part of a larger total effective sentence that is not erroneous.[15]

   [14] Gaskell v The State of Western Australia [2018] WASCA 8 [56], [59].

   [15] The State of Western Australia v BKJ [2019] WASCA 136 [119].

3. It is appropriate, where an offender wishes to contend that a sentence imposed on him or her for a single offence is manifestly excessive, for that contention to be the subject of a separate ground of appeal.[16]  However, the court's assessment of the severity of an individual sentence, and therefore whether the individual sentence is manifestly excessive or inadequate (ie whether it is unreasonable or plainly unjust), is to be undertaken in light of the sentences imposed in respect of any other counts and the individual sentence's contribution to the total effective sentence.[17]

   [16] Gaskell v The State of Western Australia [60].

   [17] The State of Western Australia v BKJ [119].

4. In the present case the sentence on count 1 (3 years' imprisonment) amounts to the whole of the custodial component of the appellant's total effective sentence (3 years' imprisonment and a fine of $1,000).

5. Manifest excessiveness (or manifest inadequacy) in an individual sentence does not becomes irrelevant merely because a total effective sentence bears a proper relationship to the overall criminality involved in all the offences.  Nor does the circumstance that an offender received a relatively light sentence (or a relatively heavy sentence) for one offence excuse, of itself, manifest excessiveness (or manifest inadequacy) in relation to another sentence for a different offence.  The statutory imperative is that each sentence imposed on an offender must be commensurate with the seriousness of the offence for which it is imposed.[18]  It is recognised, however, that an individual sentence may form part of total effective sentence and that the court's evaluation of whether an individual sentence is unreasonable or plainly unjust takes place in the context of the sentencing disposition as a whole.

   [18] Sentencing Act s 6(1).

6. We did not understand the State to be advancing any submission contrary to the propositions enunciated in [49] - [53] above.  At its highest the State contended that the sentence on count 1 should not be looked at in isolation.  Rather, according to the State, any severity in the sentence on count 1 was moderated by the leniency of the sentencing judge's disposition on the breach of the CSIO.  Alternatively, if ground 1 was upheld, the State contended that on a re‑sentencing no different lesser total effective sentence should be imposed.

7. In these respects, counsel for the appellant accepted that: (1) the apparent severity of the sentence on count 1 was moderated by the limited penalty imposed for the breach of the CSIO (this meaning, in effect, that there was only a limited penalty for the 2016 offending the subject of the CSIO); and (2) it would have been open to the sentencing judge to have ordered that the appellant serve part of the 16 month term of suspended imprisonment the subject of the CSIO.[19]

   [19] Appeal ts 9.

8. The sentencing judge's determination in relation to the breach of the CSIO was based in part on his Honour's view of totality having regard to the 3 year term of immediate imprisonment imposed in relation to count 1.  In the circumstances, counsel for the appellant accepted, correctly, that if the appeal was allowed and the court was to resentence the appellant to a different lesser sentence in relation to count 1, then the court might also have to reconsider the sentencing judge's disposition in relation to the breach of the CSIO.[20] That course is permitted by s 41(2) of the Criminal Appeals Act 2004 (WA).

The appellant's offending: the offence of assault causing bodily harm while subject to an order of conditional suspended imprisonment

[20] Appeal ts 9 - 10.

1. The offence the subject of count 1 - assault causing bodily harm contrary to s 317(1)(b) of the Code - carries a maximum penalty of five years' imprisonment.

2. No tariff exists for the offence of assault causing bodily harm because of the wide variety of circumstances in which it may be committed.[21]

   [21] Kilner v The Queen [1999] WASCA 189 [21]; The State of Western Australia v Camilleri [2008] WASCA 217 [16]; The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [170]; Holden v The State of Western Australia [43]; Boyle v The State of Western Australia [2010] WASCA 97 [39]; The State of Western Australia v Cheeseman [2011] WASCA 15 [75]; Duncan v The State of Western Australia [45].

3. In Holden v The State of Western Australia Wheeler JA identified that, where there is a plea of guilty, the relevant range includes sentences from 6 months' suspended imprisonment to 2 years' immediate imprisonment.[22]  However, as was observed in McCoombe v The State of Western Australia, nothing said by Wheeler JA should be understood as suggesting that a sentence outside the range her Honour described would be erroneous.[23]  Subsequently, in any case, it has been suggested that the older authorities relied on in Holdenmust be considered with some caution because they may not reflect contemporary sentencing standards.  There are some signs that 'firming up' may be discerned.[24]  For example, the re-sentencing by this court of one offender, Mr Gastarov, in Allen v The State of Western Australia resulted in a sentence of 2 years and 4 months' immediate imprisonment (after allowing for a 10% discount for a guilty plea).  Mr Gastarov arrived at the scene after another offender had struck the victim with a baseball bat in a sustained attack.  Mr Gastarov's own physical assaults on the already seriously injured victim were limited to three punches and two kicks to the victim's leg area.[25]

   [22] Holden v The State of Western Australia [43]. See also the surveys of various authorities concerning sentences imposed for a contravention of s 317(1)(b) of the Code in: Kilner v The Queen [22] - [27]; Mourish v The State of Western Australia [2006] WASCA 257 [12]; The State of Western Australia v BLM [166] - [172]; Wiltshire v Mafi [2010] WASCA 111 [43]; The State of Western Australia v Cheeseman [73] - [79]; Spirovski v The State of Western Australia [41] - [43].

   [23] McCoombe v The State of Western Australia [2016] WASCA 227 [29].

   [24] Duncan v The State of Western Australia [46].

   [25] Allen v The State of Western Australia [2017] WASCA 203 [87] - [88]. See also at [10] - [14].

4. The sentencing judge was correct to identify that the seriousness of the appellant's offending was aggravated by the circumstance that the assault causing bodily harm occurred while the appellant was subject to the CSIO.

5. The commission of an offence while on some form of conditional release from custody is an aggravating factor, particularly where the offence is of a similar nature to the offending or alleged offending that brought about the offender's conditional release.  It demonstrates that the offender has disregard for the law and is prepared to offend despite him or her having been granted liberty on condition of being on good behaviour.  It displays contempt for the law and enhances the need for personal deterrence.  Thus the principle applies to all forms of conditional release - be it bail, parole or other form of conditional release such as an intensive supervision order.[26]

   [26] QJS v The State of Western Australia [2015] WASCA 9 [35] - [36]; Jackamarra v The State of Western Australia [2019] WASCA 150 [57] ‑ [58]; Drage v The State of Western Australia [2021] WASCA 6 [48].

Disposition

1. Objectively speaking, the appellant's offending was at the upper end of the scale of seriousness for an offence of this type. The features of the offending recorded at [29] - [30] above require that characterisation. In particular, the injuries suffered by B were extremely serious for an offence of assault causing bodily harm which did not amount to grievous bodily harm. And, as the sentencing judge observed, there was the real potential for more serious if not catastrophic consequences. The potential for such adverse consequences, which fortunately did not come to pass, is nevertheless a highly relevant circumstance in assessing the objective seriousness of the appellant's offending.

2. In the circumstances the State is correct to observe that many of the authorities relied on by the appellant are not appropriate comparators for the present case.

3. Castrilli v The State of Western Australia involved a single roundhouse punch that caused the victim to become unconscious and fall to the ground rather than the use of a weapon.  The assault itself was considerably less serious than the present case.  So too were the injuries suffered.  In any event, so far as leave to appeal against a 12 month term of imprisonment as being manifestly excessive was refused (such ground having no reasonable prospect of success) the case provides no guidance as to the upper limits of the sentencing range for offending of its type.

4. In Spirovski v The State of Western Australia leave to appeal was granted.  The grant of leave is, however, of little moment so far as the court ultimately held that it was not reasonably arguable that the sentence of 18 months' immediate imprisonment was manifestly excessive.  This assault was also qualitatively different to the appellant's offending.  It involved a single punch, albeit one so forceful that it knocked the victim to the ground.  The victim suffered less serious injuries than those suffered by B, being displaced fractures of nasal bones and the mid-face.

5. In Carrick v The State of Western Australia an appeal against sentence was allowed on the basis that the sentencing judge made an express error as to the basis on which the offender was sentenced.  This court re-sentenced the offender to 14 months' imprisonment.  The offender did not use a weapon.  The assault consisted of approximately five punches to the victim's face which caused relatively minor injuries to the victim's nose and mouth.  The offender had the benefit of youth and had co-operated by providing a statement against a co-offender.  He received a 10% discount for a plea of guilty (ie considerably less than the 25% allowed to the appellant).

6. Eric v Bull concerned less serious offending (a single punch to the face) and less serious injuries (a broken nose, broken teeth and cuts).  Moreover, it is a decision of a single judge rather than a decision of this court.  The 7 month conditionally suspended term of imprisonment in that case is of no assistance in considering customary sentencing standards in comparable offending to the appellant's offending.

7. In addition, none of these four cases as relied on by the appellant involved an offender who was subject to a CSIO when the offender committed the assault causing bodily harm.

8. The other two authorities relied on by the appellant are also cases in which the offender was not subject to a CSIO.  Accordingly, the CSIO is an aggravating factor affecting the seriousness of the appellant's offending which distinguishes it from the offending in both Holden v The State of Western Australia and Duncan v The State of Western Australia.  It is, however, worthwhile to look at both of those cases in a little more detail.

9. Holden v The State of Western Australia has already been mentioned in terms of the relevant sentencing range that was identified by Wheeler JA in that case.  The offender pleaded guilty to one count of assault causing bodily harm.  He was 34 and had a minor criminal record, but had no previous convictions involving violence.  The offender and a co-offender had been drinking with the complainant's girlfriend in the offender's unit.  The complainant, who was intoxicated, joined them but became antagonistic towards his girlfriend.  The offender and his co‑offender removed the complainant from the unit.  The co‑offender forced the complainant to the ground with a karate chop and kneed him in the chest.  The offender struck the victim once to the abdomen with a set of wooden nunchakus.  The swing was not at full force.  However, the appellant awoke with stomach pains and was treated for a perforated bowel and various other injuries.

10. A judge of the District Court sentenced the offender to 2 years' imprisonment.  The sentencing judge characterised the offence as being in the upper range of seriousness for offences of this type.  This court allowed an appeal against sentence.  It was conceded that the sentencing judge erred in attributing to the offender criminal responsibility for the perforated bowel.  Owen and Miller JJA regarded the offending as fitting somewhere near the middle of the range of seriousness.[27]  But for the guilty plea a sentence of 2 years' imprisonment would have been appropriate; this was reduced by 25% for the guilty plea so as to arrive at a sentence of 18 months' imprisonment.[28]  Wheeler JA, while agreeing in the result, observed that given various concessions on the part of the State she assumed that this case was nowhere near the worst category of assault causing bodily harm.[29]

    [27] Holden v The State of Western Australia [36].

    [28] Holden v The State of Western Australia [37].

    [29] Holden v The State of Western Australia [51].

11. Duncan v The State of Western Australia concerned a conviction after trial.  One distinguishing feature between Duncan and the present case is that in Duncan the offending occurred in a context where the offender was in a domestic relationship with the victim of the offence. The offender was only convicted of assault causing bodily harm (Code s 317(1)(b)) rather than aggravated assault causing bodily harm (Code s 317(1)(a)). Nevertheless, the domestic relationship was an aggravating factor which added to the seriousness of the offence.[30]

    [30] Duncan v The State of Western Australia [38].

12. The offender, who had a significant criminal history including offences of violent assault and manslaughter, was on a car trip with his de facto partner.  The car broke down.  The offender's partner fell over getting out of the car.  The offender, frustrated that the car was not working, took that frustration out on his partner kicking her to the head, face and body.  The offender grabbed his partner by the hair and arm and dragged her along as he punched her.  The offender's partner suffered a broken jaw, a small superficial laceration and substantial bruising.  However, insofar as the offender was charged with but acquitted of the offence of unlawfully causing grievous bodily harm (Code s 297(3)), he was sentenced on the basis that the jury was satisfied that he had committed an assault but was not satisfied that he had caused the broken jaw.  The offending was linked to alcohol consumption and the offender was assessed as being at high risk of re‑offending against a female partner.

1. The sentencing judge imposed a sentence of 3 years' immediate imprisonment.  This court refused leave to appeal on the ground that the sentence was manifestly excessive - the contention being that the sentence was outside the range customarily imposed for sentences of this kind.  The court accepted that the sentence was high but was not persuaded that it was manifestly excessive,[31] observing that the offence was a 'very serious instance' of the offence of assault causing bodily harm.[32]

   [31] Duncan v The State of Western Australia [34].

   [32] Duncan v The State of Western Australia [36].

2. The ultimate disposition in the case - dismissal of the appeal following refusal of leave to appeal - is not unimportant.  Insofar as the offender sought to challenge his sentence of 3 years' immediate imprisonment as being manifestly excessive the court considered that contention to not even have reasonable prospects of success.[33]

   [33] Duncan v The State of Western Australia [60].

3. In Duncan v The State of Western Australia the court identified numerous authorities concerning sentences for assault causing bodily harm.[34]  For example, the court considered (as have we) the circumstances of the offending and the sentencing dispositions for assault causing bodily harm as were reviewed in Mourish v The State of Western Australia and more recent authorities such as The State of Western Australia v BLM and Spirovski v The State of Western Australia.  To these may be added Kilner v The Queen, Wiltshire v Mafi and The State of Western Australia v Cheeseman.  The court also had regard to (as have we) some sentencing authorities in relation to the offence of aggravated assault causing bodily harm (which has a higher maximum penalty of 7 years' imprisonment).[35]

   [34] Duncan v The State of Western Australia [44].

   [35] In Duncan v The State of Western Australia the court referred to Tunney v The State of Western Australia [2013] WASCA 286 and McCoombe v The State of Western Australia.  Subsequent to Duncan v The State of Western Australia is Drage v The State of Western Australia.  The different maximum penalties mean that these cases are imperfect comparators when seeking comparable cases for the purposes of an allegation of manifest excess: Drage v The State of Western Australia [46].

4. The appellant's offence was, objectively speaking, more serious than the offending in Duncanv The State of Western Australia.  The offender in Duncan assaulted his defenceless domestic partner.  Personal deterrence was a significant sentencing factor in Duncan (as it is in the present case).  However, the present case also involves: (1) the use of a rock as a weapon; (2) a forceful blow to the head of a vulnerable victim; (3) more serious injuries (the offender in Duncan not being criminally responsible for the victim's broken jaw); and (4) an offender acting in disregard for the law insofar as he was subject to a CSIO for other violent offending while intoxicated.

5. In both Duncan and the present case the sentencing disposition was a 3 year term of immediate imprisonment.  The appellant's personal circumstances were considerably more favourable than the offender in Duncan.  The appellant had the benefit of an early plea of guilty (with a 25% discount), had taken steps towards rehabilitation and demonstrated remorse.  Comparison of a sentence under appeal with a sentence imposed in a single previous case will seldom, if ever, suffice to indicate or negate an error in a sentencing disposition.  However, once the comparative objective circumstances are balanced with the respective personal circumstances it may be concluded that the sentence in the present case is not inconsistent with the outcome in the Duncan v The State of Western Australia - a matter of significance given the refusal of leave to appeal in Duncan.

6. In Duncanv The State of Western Australia the court concluded that there were relatively few recent cases which permitted direct comparisons with the offending in that case.[36]

   [36] Duncan v The State of Western Australia [52].

7. That is all the more so with the present offending.  We have not been able to identify any decisions of this court or its predecessor where there was close consideration of a sentence for assault causing bodily harm: (1) by the offender striking a victim's head with a blunt weapon using the considerable degree of force of the type employed by the appellant; (2) which was unprovoked and committed against a person in a position of vulnerability; (3) which inflicted serious injuries equivalent to the type suffered by the victim in this case (although still only constituting bodily harm) but which had the potential to cause even more serious injuries than the victim in fact suffered; and (4) by an offender who was subject to a CSIO as a result of offending which - like the assault - had been occasioned by the same precipitating event (here an inability to exercise self-control and restraint while intoxicated).

8. The absence of directly comparable cases does not prevent the court from deciding that an individual sentence is or is not manifestly excessive.  It simply means that the court has no directly comparable cases to provide a yardstick.  The question of manifest excess must be approached by reference to the maximum penalty for the offence, the place which the offending conduct occupies on the scale of seriousness for offences of that kind and the personal circumstances of the offender.

9. The maximum penalty for the offending the subject of count 1 was 5 years' imprisonment. The sentence was 3 years' imprisonment. The sentencing judge gave the appellant a discount of 25% for his plea of guilty. His Honour also gave the appellant some credit for taking steps towards his rehabilitation and demonstrating remorse. It is well settled that this court does not determine sentencing appeals by reference to an actual or notional starting point. Nevertheless, taken together, these matters indicate that the sentencing judge must have had a starting point of in excess of 4 years' imprisonment. Self-evidently, that is a substantial sentence for an offence of assault causing bodily harm contrary to s 317(1)(b) of the Code.

10. It is not, however, a sentence that suggests that the sentencing judge viewed the appellant's offending as being so grave as to warrant the maximum prescribed penalty.  Instead, in our view, it is consistent with the sentencing judge considering the circumstances of the offending and the circumstances of the appellant and assessing that the offence required a sentence just short of that which might have been appropriate had the offending been so grave as to warrant the maximum prescribed penalty.  It is, in our view, consistent with the sentencing judge identifying, correctly, that the appellant's offending was at the upper end of the scale of seriousness for an offence of this type.

11. The appellant's sentence of 3 years' imprisonment for assault causing bodily harm was undoubtedly high.  That is particularly so given the 25% discount for the early plea of guilty.  In the end, however, we have concluded that the sentence does not reach, although it approaches, a length which could be properly characterised as unreasonable or plainly unjust.  If the sentence had been any longer, the position may well have been different.  

12. We have reached this conclusion taking into account the maximum penalty for the offence (5 years' imprisonment) and the relevant sentencing factors and principles including:

    1.The facts and circumstances of the offending including the fact that, when he committed the assault causing bodily harm by striking B to the head with the rock, the appellant was subject to a CSIO.

    2.The objective seriousness of the offending including both the injuries as suffered by B and the real potential that B might have suffered more serious consequences.

    3.B's vulnerability.

    4.The general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending, discussed above. 

    5.Having regard to the preceding and following matters, the place which the appellant's criminal behaviour occupies on the scale of seriousness for offences of this kind.

    6.The appellant's early plea of guilty.

    7.The appellant's personal circumstances and antecedents.

    8.The necessity for personal deterrence as evinced by the appellant's continued violent offending, while intoxicated, despite being subject to a CSIO which also resulted from violent offending while intoxicated.

    9.The appellant's steps towards rehabilitation and demonstrated remorse.

    10.The moderating effect on the severity of the individual 3 year sentence of the total effective sentence and the otherwise lenient outcome in respect of the appellant's breach of the CSIO.

    11.All other relevant sentencing factors including the aggravating factors and mitigating factors mentioned by the sentencing judge.

13. Taking these matters into account, the sentence of 3 years' immediate imprisonment, while high, is not unreasonable or plainly unjust so as to signify that a substantial wrong has occurred or there has been some misapplication of principle.  The sentence of 3 years' immediate imprisonment is not manifestly excessive.  Ground 1 should be dismissed.

14. As ground 1 should be dismissed, it is not necessary to consider the State's alternative argument, namely, that even if count 1 was manifestly excessive, no different or lesser sentence should be imposed.  Nor is it necessary to consider a post-appeal hearing affidavit filed by the appellant in support of any re-sentencing.

Conclusion and orders

1. The single ground of appeal had a reasonable prospect of succeeding.  There should be leave to appeal.  However, the appeal should be dismissed.

2. We would order that:

   1.The appellant has leave to appeal on ground 1.

   2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AT

Research Associate to the Honourable Justice Vaughan

30 APRIL 2021