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

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DUNCAN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 154
CORAM:   BUSS P
MAZZA JA
PRITCHARD J

HEARD:   21 MAY 2018
DELIVERED:   31 AUGUST 2018
FILE NO/S:   CACR 187 of 2017
BETWEEN:   RONALD EDWARD DUNCAN
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction:   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number:   IND DER 20 of 2016

Catchwords:

Criminal law - Sentencing - Appeal against sentence - Whether sentence was manifestly excessive - Assault occasioning bodily harm - Aggravating factors - Domestic violence

Legislation:

Criminal Code (WA), s 317(1)(b)

Result:

Application for extension of time refused
Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr M R Gunning
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Gunning Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in judgment(s):

Allen v The State of Western Australia [2017] WASCA 203
Baker v The State of Western Australia [2018] WASCA 15
Bropho v Hall [2015] WASC 50
Carrick v The State of Western Australia [2017] WASCA 175
Casserley v The Queen, (Unreported, WASC, Library No 990164, 31 March 1999
Garlett v Dillon (Unreported, WASC, Library No 960353, 5 July 1996)
Gillespie v The State of Western Australia [2013] WASCA 149
Hansen v The State of Western Australia [2014] WASCA 229
Holden v The State of Western Australia [2009] WASCA 50
Kilner v The Queen [1999] WASCA 118
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McCoombe v The State of Western Australia [2016] WASCA 227
Mourish v The State of Western Australia [2006] WASCA 257
Robertson v The Queen, (Unreported, WASCA, Library No 990145A, 23 March 1999)
Sartori v The State of Western Australia [2014] WASCA 98
Spirovski v The State of Western Australia [2017] WASCA 230
Tan v The Queen (Unreported, WASCA, Library No 960188, 1 April 1996)
Taylor v The State of Western Australia [2016] WASCA 38
The Queen v Brand (Unreported, WASCA, Library No 980590A, 9 October 1998)
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v Smith [2016] WASCA 153
Toomath v The Queen, (Unreported, WASCA, Library No 990107, 9 February 1999)
Tunney v The State of Western Australia [2013] WASCA 286
Wade v The Queen [2001] WASCA 252
Wilson v The State of Western Australia [2010] WASCA 82

JUDGMENT OF THE COURT:

This is an appeal against the sentence imposed on the appellant for the offence of assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code (WA). The maximum penalty for that offence is 5 years' imprisonment. The sentence imposed by the learned sentencing judge on 4 April 2017 was a term of 3 years' immediate imprisonment, backdated to 13 January 2017. The appellant was made eligible for parole.
The sole ground of appeal is that the sentence imposed was manifestly excessive.
The appellant requires leave to appeal.[1] In addition to leave to appeal, the appellant also requires an extension of time[2] as the appeal was filed on 13 September 2017, 141 days out of time. His application for an extension of time, together with his application for leave to appeal, was referred to the hearing of the appeal.
[1] Criminal Appeals Act 2004 (WA) s 27(1).
[2] Criminal Appeals Act 2004 (WA) s 28(3).
For the reasons set out below, we would refuse the application for an extension of time, refuse leave to appeal, and dismiss the appeal.

The circumstances of the offence

The circumstances of the offence, as set out by the learned sentencing judge, were as follows.
The offence was committed on 13 May 2016. The assault was committed on the appellant's de facto partner (NFB), with whom he had been in an intermittent relationship for about eight years. They have three children together. The offence was committed about a month after NFB gave birth to their third child.
The offence was committed on a day soon after NFB had returned to her home with the appellant at Koorabye, after giving birth in Perth. The appellant and NFB had travelled to Noonkanbah to celebrate NFB's birthday with friends. The appellant smoked some cannabis and had two drinks. NFB also drank alcohol, but ended up very significantly intoxicated, so much so that she fell over a number of times.
The appellant and NFB then drove home. NFB fell asleep on the front seat of the car. She awoke to find that the car had broken down and the appellant was out of the car, trying to restart it.
NFB went to get out of the car, but as she did so, she fell from the passenger seat onto the roadway, striking the left side of her head, and injuring herself there. By that stage, the appellant was frustrated that the car was not working, and he took that frustration out on NFB. When she fell from the car he began to kick her to the head, face and body. He was wearing rodeo boots at the time. He grabbed her by the hair and arm and dragged her along as he punched her. Throughout the assault, NFB screamed at the appellant to stop. When he eventually did, he helped her back into the car, where they waited until some other people happened to pass by along the road. They were relatives of NFB, and they took her with them back to their home where she stayed the night.
The next morning NFB went to hospital, and was eventually airlifted to Broome, and later flown to Perth. NFB had a broken left jaw, a small superficial laceration, and substantial bruising to multiple areas of her body, namely her right orbital area, her right upper abdominal region, the mid-thoracic region of her back, and over her lower neck and cervical spine.
The appellant was tried for the offence of unlawfully causing aggravated grievous bodily harm, contrary to s 297(3) of the Criminal Code (WA), but was acquitted of that charge and convicted of the alternative offence of assault occasioning bodily harm. The learned sentencing judge concluded that the jury were satisfied that the appellant had committed an assault on NFB but were not satisfied that the assault caused the fracture to her jaw that was alleged to have constituted the grievous bodily harm. Accordingly, the learned sentencing judge did not sentence the appellant on the basis that he had caused NFB's broken jaw, although her Honour did take into account that the commission of the assault on NFB would have aggravated the injury to her jaw and contributed to the pain she suffered as a consequence of that injury.

The appellant's personal circumstances

The appellant is an Aboriginal man who was 37 years old at the date of the offence. He was born in Wyndham, but his mother left him in the care of relatives in Halls Creek, who raised him. On the whole, the appellant had a good upbringing in their care.
The appellant was educated to year 10 and did not experience any learning or social difficulties at school. When he finished school, he began working on stations and has an extensive work history on various cattle stations in the Kimberley and the Northern Territory, including in supervisory positions.
The appellant has had nine children from six different relationships. At the date of sentencing, his relationship with NFB had ended and he was in a relationship with a new partner.
The appellant has a significant criminal history, involving numerous offences of violent assault and breaching protective bail conditions, in addition to numerous driving offences. His first offence involving domestic violence was committed in 2004, and thereafter he was convicted of four further offences involving violence. All but one of these involved domestic violence.
His most serious prior conviction was for manslaughter in 2008, for causing the death of his 22 month old daughter, when she sustained burns after he immersed her in hot water to punish her.[3] He received a term of 4 years and 10 months' immediate imprisonment for that offence.
[3] AB 42 (ts 15).
The pre-sentence report indicated that the appellant's offending on this occasion was linked to alcohol consumption, lack of consequential thinking, poor impulse control and lack of victim empathy. The appellant was described as a person who resorted to violence to resolve any conflict at home, and who used power and control over his partners to help him maintain a sense of control over his own environment. The sentencing judge also accepted that the appellant did not accept any personal responsibility for the difficulties in his relationships but instead attributed the difficulties in his personal relationships to factors such as his partners' substance abuse, mental health or jealousy. The psychologist who reviewed him prior to his sentencing regarded him as presenting a high risk of re‑offending against a female partner.

The sentence imposed and the reasons given by the learned sentencing judge

The learned sentencing judge regarded the offending conduct as very serious. Her Honour characterised the offending as a sustained attack on NFB when she was vulnerable, by virtue of being alone with the appellant in an isolated area, and severely intoxicated. Her Honour found that the attack was completely unprovoked, and that the appellant had taken out his frustration on NFB. The sentencing judge also regarded the offending conduct as a cowardly attack, in that the appellant struck NFB when she was on the ground, and when he knew she was in no condition to run away or defend herself.
The sentencing judge regarded the offence as having been aggravated by the fact that NFB had only recently delivered her youngest child. Her Honour also regarded their domestic relationship as an aggravating factor in that NFB was entitled to feel safe with the appellant.
The learned sentencing judge concluded that the appellant had shown no remorse for the offence, given his sustained denial that he was responsible for the assault on NFB. The appellant denied that he had in any way assaulted her, and initially claimed that they had both been the victims of a sustained attack by unidentified third persons, or that they had been assaulted by evil Aboriginal spirits. The appellant also suggested that NFB's injuries resulted from falling over during the course of the evening.
The learned sentencing judge found that the appellant continued to abrogate responsibility for the offence even after his conviction. The pre-sentence report indicated that he sought to blame NFB for the assault. The learned sentencing judge noted that initially, NFB had also claimed that she and the appellant had been assaulted by Aboriginal spirits. The learned sentencing judge concluded that the nature of NFB's relationship with the appellant was such that she felt compelled to cover up his conduct.
The learned sentencing judge concluded that there were few mitigating factors apart from the appellant's good work record. Her Honour concluded that the appellant's prospects of rehabilitation were not good because of his tendency to minimise or deny his need to address the issues underlying his offending. Her Honour concluded that there was a real need for specific deterrence in this case, and that the need to protect the community, and particularly women, was an important factor in the appellant’s sentencing.
The learned sentencing judge also had regard to the insidious nature of domestic violence and the difficulties in detecting and prosecuting it, and to community concern about the level of domestic violence, and concluded that there was a need to impose a sentence which was directed to general deterrence.
In fixing the term of imprisonment, the learned sentencing judge took into account that the appellant had spent 81 days remanded in custody solely for this offence. Her Honour backdated the commencement of his sentence to take that time in custody into account. The appellant had also spent a further 82 days remanded in custody for both this offence and other offences in relation to NFB. Her Honour gave him credit for this in determining the sentence she imposed. Finally, the appellant had spent a further period in custody between 25 August 2016 and 30 November 2016 for a separate offence. Her Honour took into account the fact that the sentence she imposed would be served following that time in custody.
After taking into account the circumstances of the offence, the aggravating features of this case, the limited mitigating factors, and the periods the appellant had spent in custody, the learned judge imposed a term of 3 years' immediate imprisonment, backdated to 13 January 2017. Her Honour made the appellant eligible for release on parole.

The ground of appeal

The sole ground of appeal is that the sentence imposed was, in all of the circumstances, manifestly excessive. In particular, counsel for the appellant pointed to the time spent in custody, the appellant's antecedents and the sentences imposed in comparable cases. However, counsel for the appellant accepted that her Honour appropriately took into account the appellant's prior periods in custody.[4]
[4] Appellant's outline of submissions [26].
In the end, the thrust of the appeal was that the sentence was manifestly excessive because it was outside the range customarily imposed for offences of this kind.[5]
[5] Appellant's outline of submissions [28].

Principles in relation to appeals against sentence

The relevant sentencing principles are well established.[6] It is unnecessary to repeat all of those principles here. In order to demonstrate that the sentencing judge made an implied error by imposing a sentence that was manifestly excessive, the appellant must show that the sentence imposed was plainly unjust or unreasonable.
[6] See, for example, Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA).
In order to ascertain whether a sentence is manifestly excessive, it is necessary to consider the sentence having regard to the maximum penalty available, to the standards of sentencing customarily observed in relation to offences of that character, to the place which the criminal conduct occupies on the scale of seriousness of offences of the same kind, and to the personal circumstances of the offender.[7] All aggravating and mitigating factors must also be taken into account.
[7] Taylor v The State of Western Australia [2016] WASCA 38 [23] (Buss JA, Mazza JA agreeing).
The importance of the discretion conferred on sentencing judges must be kept firmly in mind. The role of an appellate court is not to substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[8] These principles are 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.[9] The offence of assault occasioning bodily harm is a paradigm example of such an offence.
[8] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
[9] Sartori v The State of Western Australia [2014] WASCA 98 [30] (Martin CJ, Pullin JA and Mazza JA agreeing).

The appellant's submissions

Counsel for the appellant acknowledged that the assault was not a trivial one, that it 'certainly had aspects that were concerning',[10] that the appellant was not of prior good character, and that he had previously resorted to violent offending.[11] However, he emphasised that the offence did not involve the use of a weapon, was not planned or premeditated, 'was of short duration' and involved being 'kicked a couple of times to the face and head',[12] that the appellant was 'told to stop and [he] did so,'[13] and that the appellant helped the complainant back into the car after the attack.[14] He submitted that these factors meant that this case did not fall within the higher bracket of serious cases of assault occasioning bodily harm.[15]
[10] ts 222.
[11] ts 222.
[12] Appellant's outline of submissions [35].
[13] Appellant's outline of submissions [35].
[14] ts 225.
[15] ts 225.
Counsel for the appellant sought to derive support from a number of cases involving sentences for assault occasioning bodily harm including Kilner v The Queen,[16] The State of Western Australia v Cheeseman,[17] Carrick v The State of Western Australia[18] and The State of Western Australia v BLM[19] and from the cases discussed in BLM, namely Tan v The Queen,[20] Garlett v Dillon,[21] The Queen v Brand,[22] Toomath v The Queen,[23] Robertson v The Queen,[24] and Casserley v The Queen.[25] Counsel for the appellant submitted that these cases 'give a broad idea of the sentences imposed'[26] and that the 'present sentence goes substantially higher than the cases referred to in these authorities'.[27]
[16] Kilner v The Queen [1999] WASCA 118.
[17] The State of Western Australia v Cheeseman [2011] WASCA 15.
[18] Carrick v The State of Western Australia [2017] WASCA 175.
[19] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414.
[20] Tan v The Queen (Unreported, WASCA, Library No 960188, 1 April 1996).
[21] Garlett v Dillon (Unreported, WASC, Library No 960353, 5 July 1996).
[22] The Queen v Brand (Unreported, WASCA, Library No 980590A, 9 October 1998).
[23] Toomath v The Queen, (Unreported, WASCA, Library No 990107, 9 February 1999).
[24] Robertson v The Queen, (Unreported, WASCA, Library No 990145A, 23 March 1999).
[25] Casserley v The Queen, (Unreported, WASC, Library No 990164, 31 March 1999.
[26] Appellant's outline of submissions [32].
[27] Appellant's outline of submissions [33].
Counsel for the appellant submitted that the sentence imposed was 60 percent of the maximum for the offence, but that the effective sentence must be regarded as higher than that because the learned sentencing judge took into account the time the appellant had spent in custody, over and above the time spent remanded in custody which was directly taken into account by backdating the sentence.[28] He submitted that the sentence imposed represented a 'quantum leap'[29] in comparison with sentences ordinarily imposed for offending of this kind. He submitted that the authorities suggested that a term of 2 years' immediate imprisonment would be imposed for comparable offending. Counsel for the appellant submitted that 'even if there has been a hardening up of sentencing', the sentence imposed here was so far outside the scope of ordinary sentencing practice that it would be regarded as manifestly excessive.[30]
[28] Appellant's outline of submissions [34]; ts 224.
[29] ts 224.
[30] ts 224.

Disposition of the appeal

Although the sentence imposed by the learned sentencing judge was high, we are not persuaded that it was manifestly excessive, in all of the circumstances, for the following reasons.
First, as we have said, the maximum penalty for this offence was 5 years' imprisonment. This is a convenient point to note that while the appellant was tried for the offence of unlawfully causing grievous bodily harm, in circumstances of aggravation, namely that the appellant was in a domestic or family relationship with NFB, the appellant was convicted of the alternative offence of assault occasioning bodily harm. The trial judge did not seek the jury’s verdict on the circumstance of aggravation, because she was not satisfied that it was included in the provision for an alternative verdict.[31] As we explain below, however, that did not mean that the domestic relationship between the appellant and NFB was irrelevant in assessing the seriousness of the offence.
[31] ts 209 - 210.
Secondly, the offence in question was a very serious instance of the offence of assault occasioning bodily harm. We are unable to accept the submission of counsel for the appellant that the offence did not fall within the higher bracket of serious cases of assault occasioning bodily harm. With respect, counsel's submission that the offence involved being 'kicked a couple of times to the face and head' and that the assault ceased when NFB told the appellant to stop, understated the seriousness of the assault. It was an entirely unprovoked assault on a defenceless, heavily intoxicated woman, who was lying on the ground and already injured, at the time. The assault involved NFB being punched, dragged along the ground, and kicked on her face, head and over her upper torso, when the appellant was wearing boots.

As for counsel's submission that a weapon was not used, and that the offence was not premeditated, the absence of aggravating factors of that kind does not equate to a mitigating factor in the appellant's favour.
The domestic relationship between the appellant and NFB was an aggravating factor which added to the seriousness of this offence. As we have explained, the domestic relationship between the appellant and NFB as a circumstance of aggravation was not part of the jury’s verdict. However, s 7(3)(b) of the Sentencing Act 1995 (WA) makes clear that even if an offender is not convicted of committing an offence in a circumstance of aggravation, those aggravating circumstances may be taken into account as aggravating factors for the purpose of sentencing. Consequently, the fact that the appellant committed the assault on NFB, who was in a domestic relationship with him, could properly be taken into account as an aggravating factor in assessing the seriousness of the offence.[32]
[32] Gillespie v The State of Western Australia [2013] WASCA 149 [14], [174] (Martin CJ, Pullin JA agreeing); Wade v The Queen [2001] WASCA 252 at [44] (McKechnie J, Malcolm CJ & Anderson J agreeing).
In this case, the offence was properly regarded as more serious because it was committed by the appellant on his partner, who had only very recently delivered his child, and who was entitled to his care, rather than to an abject demonstration of his complete lack of respect for her and for her human dignity.
There is no doubt that the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them, means that general deterrence is an important sentencing consideration in offences of this kind. In Bropho v Hall,[33] Mitchell J (as his Honour was then) discussed the impact of the aggravating factor of an assault committed in the context of a domestic relationship. His Honour rightly said:[34]
An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.
[33] Bropho v Hall [2015] WASC 50.
[34] Bropho v Hall [2015] WASC 50 [16]; referred to with approval in Gillespie v State of Western Australia [2016] WASCA 216 [48].
Thirdly, there was little in the way of mitigating factors, apart from the appellant's work history. There was no plea of guilty. The appellant showed no remorse for his conduct, and denied any responsibility for what occurred. The appellant was clearly not of good character. Further, the appellant’s record for violent offences against his female partners, and his lack of prospects for rehabilitation, underscored the importance of specific deterrence, and the protection of the community, in the sentence imposed.
Fourthly, to the extent that the standards of sentencing customarily observed in relation to offending of this kind can be usefully discerned from the authorities, we are not persuaded that they support the conclusion that this sentence was out of the bounds of the proper exercise of the sentencing judge's discretion.
Before turning to consider the authorities relied upon by the appellant, it is pertinent to observe that comparable cases provide a flexible, rather than rigid, guide to sentencing standards for any offence. A sentencing range (if in fact one can be shown to exist for an offence) is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. Even if a sentence imposed is outside that range that does not necessarily establish that the exercise of the sentencing discretion miscarried.[35]
[35] Taylor v The State of Western Australia [2016] WASCA 38 [24] - [25] (Buss JA, Mazza JA agreeing).
We have considered the circumstances of the offending, and the sentences imposed, in Kilner v The Queen, Tan v the Queen, Garlett v Dillon, The Queen v Brand, Toomath v The Queen, Robertson v The Queen, and Casserley v The Queen.We have also had regard to the sentencing dispositions for assault occasioning bodily harm which were reviewed in Mourish v The State of Western Australia.[36]We do not propose to set out the facts, the antecedents of the offenders, and sentences imposed in each of those cases. It suffices to say that none is directly comparable. Some of them involve some similar features to those present in this case, and all of them involve some different features which distinguish them from this case. All of that means that those cases are of limited assistance in assessing whether the present sentence was manifestly excessive.
[36] Mourish v The State of Western Australia [2006] WASCA 257.
Furthermore, no tariff exists for the offence of assault occasioning bodily harm because of the wide variety of circumstances in which it may be committed. In Holden v The State of Western Australia[37] Wheeler JA reviewed previous authorities and concluded that in cases involving pleas of guilty for that offence, sentences expressed in post‑transitional terms from 6 months' suspended imprisonment, to 2 years' immediate imprisonment, were commonly imposed. It must, of course, be borne in mind that a discount for a plea of guilty will result in a lower sentence than in a case where the offender has proceeded to trial. In any event, her Honour's summary of the post‑transitional range of sentences customarily imposed should not be understood as suggesting that a sentence outside that range would be erroneous.[38]
[37] Holden v The State of Western Australia [2009] WASCA 50.
[38] McCoombe v The State of Western Australia [2016] WASCA 227 [29] (Newnes & Mazza JJA).
Most of the cases mentioned above were decided a decade or more ago. Older authorities must be considered with some caution because they may not reflect contemporary sentencing standards. In addition, legislative amendments to recognise the commission of assaults within family and domestic relationships as a specific aggravating factor has encouraged firmer sentences for such offences. Some signs of that firming up may be discerned, for example, in the context of the sentences imposed for aggravated grievous bodily harm, which were considered in Hansen v The State of Western Australia,[39] in The State of Western Australia v Smith[40] and in Baker v The State of Western Australia.[41]
[39] Hansen v The State of Western Australia [2014] WASCA 229.
[40] The State of Western Australia v Smith [2016] WASCA 153.
[41] Baker v The State of Western Australia [2018] WASCA 15.
We have also considered other, more recent, authorities, concerning sentences for assault occasioning bodily harm, including The State of Western Australia v BLM,[42] Carrick v The State of Western Australia,[43] Allen v The State of Western Australia,[44] and Spirovski v The State of Western Australia.[45]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.
[42] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414.
[43] Carrick v The State of Western Australia [2017] WASCA 175.
[44] Allen v The State of Western Australia [2017] WASCA 203.
[45] Spirovski v The State of Western Australia [2017] WASCA 230.
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.[46]
[46] Spirovski v The State of Western Australia [2017] WASCA 230.
In our view, the aggravating features of the present case mean that it must be viewed as involving more serious offending than in these cases.
Cases involving assaults occasioning bodily harm against victims in domestic relationships with the offender are clearly of more relevance to the present case. The appellant relied on The State of Western Australia v Cheeseman.[47] In that case, a fine of $1000 imposed on an offender who punched his domestic partner so hard on her check that he knocked her down, and then punched her again, leaving her with bruising to her eye, a small laceration to her left cheek, a non‑displaced fracture to that side of her face, a large bruise to her right upper arm and a dark bruise to her right groin, was held to be a manifestly inadequate sentence. The offender was re-sentenced to a term of immediate imprisonment of 6 months for the assault occasioning bodily harm. Viewed on its own, that was a lenient sentence, which was referable to the unusual circumstances of that case. The offence was one among a number of offences for which the offender received longer terms of imprisonment, including deprivation of liberty, and in a context where the offender had found employment, had reconciled with the victim and was supporting her and their child, and demonstrated excellent prospects for rehabilitation. Those distinguishing features mean that Cheeseman is not a useful comparator.
[47] The State of Western Australia v Cheeseman [2011] WASCA 15.
There are relatively few recent cases which permit direct comparisons with the present case. Sentences for aggravated assault occasioning bodily harm also provide some, albeit limited, comparisons. However, there is no tariff for the offence of aggravated assault occasioning bodily harm[48] given the very wide variety of circumstances which may be involved, both in relation to the nature of the offence, and the circumstance of aggravation.
[48] Tunney v The State of Western Australia [2013] WASCA 286 [29] (Mazza JA, Newnes JA agreeing).
Furthermore, the existence of the domestic relationship between offender and victim is usually pleaded as an aggravating circumstance, so that the higher maximum penalty of 7 years' imprisonment under s 317(1)(a) of the Criminal Code applies. In reviewing the authorities concerning sentences for aggravated assault occasioning bodily harm, it must be borne in mind that the higher maximum penalty will ordinarily result in a higher sentence being imposed. In other words, all things being equal, the same conduct committed in the context of a domestic or family relationship which is the subject of a charge under s 317(1)(a) would ordinarily be expected to receive a higher penalty than if the same conduct were the subject of a charge under s 317(1)(b), and the domestic relationship was taken into account under s 7(3)(b) of the Sentencing Act 1995 (WA) as an aggravating factor.
More useful comparisons may be made with the offending in both Tunney v The State of Western Australia[49] and McCoombe v The State of Western Australia.[50]In Tunney, the offender entered a fast track plea to three counts on an indictment, and was also dealt with for a number of other offences under a s 32 notice. Relevantly for present purposes was count 1, which was a charge of aggravated assault occasioning bodily harm, where the circumstance of aggravation was the offender and victim were in a domestic relationship. The offender went to the victim's home, and an argument eventuated which descended into physical violence, to the point where the victim was on the living room floor with the offender, who was significantly taller and heavier than her, standing over her. He then kicked her in the groin, causing extensive bruising and pain. Of the two other offences on the indictment, for which the offender was sentenced, the most serious was an offence of aggravated burglary when the offender entered the victim's house using a copied set of keys, and a struggle ensued, which resulted in the victim hitting her head on a bedside table.
[49] Tunney v The State of Western Australia [2013] WASCA 286.
[50] McCoombe v The State of Western Australia [2016] WASCA 227.
The offender was 29 years of age when sentenced, had been constantly employed since leaving school, had no criminal record, and relied on a number of character references. He was given a 20% discount for his early plea of guilty. On the other hand, he showed little remorse for his offending, and there was evidence that he had tried to intimidate the victim into accepting blame for his offending. The offender was sentenced to 18 months' immediate imprisonment for the aggravated assaulted occasioning bodily harm. However, that sentence needs to be viewed within the context of the total sentences imposed on the offender, and in which the sentence for the aggravated assault occasioning bodily harm was cumulative on the offender's sentence of 22 months' immediate imprisonment for the aggravated burglary. This Court refused leave to appeal, rejected the offender's contention that the latter sentence was manifestly excessive,[51] and found that the overall sentence imposed did not infringe the totality principle.
[51] Tunney v The State of Western Australia [2013] WASCA 286 [30] (Mazza JA, Newnes JA agreeing).
Turning to McCoombe, the offender was convicted of four counts of aggravated assault occasioning bodily harm, contrary to s 317(1)(a). Of those, the most serious was count 4, for which the offender was sentenced to 5 years' immediate imprisonment. The facts of that count were that the offender poured a kettle of boiling water down his partner's back, causing second and third degree burns. That was the only sentence the subject of the appeal, on the basis that it was manifestly excessive. The sentences imposed for the other counts were between 1 year's immediate imprisonment and 1 year and 2 months' immediate imprisonment. The sentence on count 4 was regarded by this Court as a severe one, and was one which, had there not been a reduction for the plea of guilty, would have been very close to the maximum penalty. Nevertheless, the Court did not find the sentence manifestly excessive, given that the circumstances meant that it was an offence of the utmost gravity.[52] The other sentences were not the subject of appeal, but this Court observed that they could reasonably be seen as lenient, and as reflecting their less serious circumstances, or possibly as being justifiably lenient by reason of the totality of all of the sentences imposed.[53]
[52] McCoombe v The State of Western Australia [2016] WASCA 227 [36] (the Court).
[53] McCoombe v The State of Western Australia [2016] WASCA 227 [35] (the Court).
To our minds, the appellant's antecedents, the absence of a guilty plea, and his lack of remorse, mean that the appellant’s offending must be regarded as more serious than that in Tunney. However, while serious, the offending here is not as serious as the extremely grave offending involved in McCoombe.In our view, even allowing for the impact of the higher maximum penalty that applies to aggravated assault occasioning bodily harm offences, neither Tunney nor McCoombe supports the conclusion that the sentence imposed in the present case was outside a proper exercise of the sentencing judge's discretion.
Having regard to all of the authorities we have discussed, we are not persuaded that the sentence imposed in this case represented a ‘quantum leap’ from the sentences which would ordinarily be imposed for an assault occasioning bodily harm.
The sentence imposed in this case was undoubtedly a significant sentence for an assault occasioning bodily harm. However, the seriousness of the offending in view of the aggravating features discussed above, the need for general and specific deterrence, and the very limited mitigation, warranted the imposition of a significant term of imprisonment. In those circumstances, the sentence imposed was not one which can be regarded as plainly unjust or unreasonable.
In our view, the appeal did not have a reasonable prospect of succeeding. Consequently, leave to appeal should be refused and the appeal should be dismissed.

Extension of time in which to appeal

The appellant was sentenced on 4 April 2017. The appeal was commenced on 13 September 2017, some 141 days outside the 21‑day time period within which an appeal must be instituted.[54]
[54] Criminal Appeals Act 2004 (WA) s 28(3).
The appellant's solicitor swore an affidavit setting out the circumstances which accounted for some of the delay in filing the appeal. An initial grant of legal aid was made on 17 July 2017, but was limited to obtaining an opinion on an appeal against sentence.[55] By that time, the time for filing the appeal had already expired. No explanation has been given by the appellant or his solicitor as to that initial delay.
[55] AB 6.
There was then a delay while the appellant's solicitor sought to obtain the transcript of the sentencing hearing from the appellant's former solicitors. A further delay arose between the appellant's solicitor providing an opinion on the appeal against sentence, and the grant of legal aid to bring the appeal itself. Part of the latter delay appears to be attributable to an oversight in the office of the appellant's solicitor, who accepted that the delay was not attributable to the appellant.[56]
[56] AB 7.
The time limit for bringing an appeal is not merely an aspirational target. Every effort must be made to comply with it. Even if there is merit in a ground of appeal, it cannot be assumed that an extension will necessarily be granted.
The State does not object to the grant of an extension of time in which to bring the appeal. Counsel for the State submitted that the issue fell to be decided in light of the merits of the appeal.[57]
[57] Respondent's submissions [31].
In the present case, the delay in instituting the appeal was only partly explained. Further, as we have concluded that this case does not warrant the grant of leave to appeal, in our view, it cannot be said that the interests of justice warrant an extension of time.

Conclusion

We would make the following orders:
1.The application for an extension of time within which to appeal is refused;
2.Leave to appeal is refused;
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD
31 AUGUST 2018