Eric v Bull

[2014] WASC 342

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   ERIC -v- BULL [2014] WASC 342

CORAM:   CORBOY J

HEARD:   8 AUGUST 2014

DELIVERED          :   12 SEPTEMBER 2014

PUBLISHED           :  24 SEPTEMBER 2014

FILE NO/S:   SJA 1024 of 2014

BETWEEN:   ZELJKO ERIC

Appellant

AND

GEOFFREY DAVID BULL
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G BENN

File No  :MI 9655 of 2013

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence of immediate imprisonment manifestly excessive

Legislation:

Criminal Code (WA), s 317
Sentencing Act 1995 (WA), s 6

Result:

Leave to appeal granted
Appeal allowed and appellant re-sentenced

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Ms T J Mcarthur

Solicitors:

Appellant:     D G Price & Co

Respondent:     Director of Public Prosecutions (WA)

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

Ali v The State of Western Australia [2013] WASCA 55

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Kilner v The Queen [1999] WASCA 189

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

Rhatigan v Forbes [2009] WASC 368

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

Wilson v The State of Western Australia [2010] WASCA 82

Wiltshire v Mafi [2010] WASCA 111

CORBOY J: 

The proposed appeal and the result

1. The appellant was charged that on 7 November 2013 he unlawfully assaulted Keagan Lee Picado and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code (WA). He pleaded guilty to that charge on 13 December 2013. He agreed to participate in victim mediation and a pre‑sentence report was ordered. Accordingly, the appellant was not sentenced until 25 March 2014. He was sentenced to a term of immediate imprisonment of 7 months.

2. The appellant commenced an appeal on 1 April 2014, contending that the sentence of immediate imprisonment was manifestly excessive having regard to his plea of guilty; the criminality involved in the offence for which he was convicted; his antecedents; the sentences imposed in comparable cases and the pending birth of his second child.  He was granted bail on 3 April 2014 pending his application for leave to appeal.  An order was subsequently made that the appellant's application for leave to appeal be heard at the same time as the appeal.

The facts

1. The facts alleged by the prosecution and admitted by the appellant were that at about 4 pm, 7 November 2013, the appellant went to a hardware store in Ellenbrook.  He had arranged to collect a hire vehicle from the store but when he arrived he was told it was not available.  An argument ensued between the appellant and staff members.  The appellant left the store angry and frustrated.

2. The victim was an employee of the store.  He was 17 years of age, 167 cm tall and of slim build.  The appellant is 31 years of age, 190 cm and of solid build.  The victim followed the appellant out of the store.  The appellant and the victim argued in the carpark as they walked to where the appellant had parked his motorcycle.  The appellant punched the victim to the face, causing a broken nose, three broken teeth and cuts.  The appellant remained at the hardware store.  He consented to a notebook record of interview being taken and admitted the offence.

The pre‑sentence and mediation reports

1. The prosecutor did not dispute the appellant's personal circumstances as recorded in his pre‑sentence report.  Among the matters noted in the report were that the appellant had been married for approximately 12 years and he and his partner had a one‑year‑old son.  His partner was pregnant at the time that the report was prepared.

2. The appellant had left school at the age of 17 years and had completed an advanced diploma in electrical engineering at TAFE.  He had worked as an auto‑electrician and as a forecasting analyst for Western Power.  However, he reported that he had been bullied in his workplace and had taken three months' stress leave in 2012. 

3. At the time the offence was committed, the appellant was under financial and personal stress as a consequence of the problems that he had experienced in his work with Western Power.  He had encountered difficulties in the course of the day in organising the hire of a utility from the hardware store.  The appellant had been initially told that he had not produced sufficient evidence of his identity.  He went away to obtain further proof, but when he returned to the store he was told the vehicle was no longer available.  He had wished to hire the utility to assist with arrangements for a family wedding to be held the next day.  He became angry and kicked over a sign before leaving the store.

4. The appellant had obtained employment as a driver in a business conducted by his cousin by the time that he was sentenced.  He had been referred to a psychologist immediately following the offence.  He had voluntarily attended four sessions with the psychologist, who had endeavoured to assist the appellant with emotional and anger management.  The author of the appellant's pre‑sentence report considered that further counselling was required.  The author noted that the appellant suffered a lack of consequential thinking, deficits in emotional management, poor decision‑making skills and anger management problems.  However, it was also noted that there were protective factors such as stable accommodation, employment and familial support. 

5. The appellant was convicted of a traffic offence in March 2002 and with hindering the police a few months later.  He was made subject to a community release order on an undertaking of $100.  A spent conviction order was also made.  The appellant was convicted of disorderly behaviour in public in July 2008 and driving whilst suspended for non‑payment of fines in June 2013.  He was fined $250 for the disorderly behaviour offence.

6. The author of the appellant's pre‑sentence report concluded that the appellant had displayed insight into his offending and a 'high level' of empathy for his victim and remorse.  The report was generally supportive of a community based penalty being imposed.  It was said that the appellant presented as motivated to engage in the requirements of a community based sanction and was considered to be a suitable candidate for such an order to address his criminogenic needs.  It was recommended that supervision and program requirements be ordered if it was considered appropriate for the appellant to be given an opportunity to address his offending in the community.

7. The mediation report noted that the appellant admitted that he had become very angry on being refused a hire of the utility.  He had kicked over a sign and had 'snapped' and hit the victim once.  He claimed that he had not realised that he had hit the victim so hard and said that, 'As soon as I had done it I felt like crap and I should not - I should not have done it.  I am angry at myself for not being more controlled and it all spiralling out of control.' 

8. The victim told the mediation officer that he had gone outside to get the registration number of the appellant's vehicle in view of the altercation that had occurred in the store.  The appellant punched him suddenly once in the face.  It had been necessary for surgery to repair his broken nose.  He required further surgery.  He was concerned that his application to become a Western Australian police cadet could be delayed because of the injury.  As it transpired, the victim had been accepted as a cadet by the time that the appellant was sentenced.

9. The mediation officer concluded that the appellant showed significant remorse towards the victim and wished to apologise to him.  He wrote a letter of apology to the victim.

The prosecutor's submissions

1. The prosecutor submitted that an immediate term of imprisonment was the only appropriate sentencing disposition having regard to the injuries inflicted on the victim, the age of the victim, the difference in the size between the appellant and the victim and the fact that the victim was assaulted at his work place.

The magistrate's sentencing remarks

1. The magistrate described the assault as 'very serious':

   The victim in this case was a boy, a child, and a slimly built child at that, and 17 years old and the photos clearly represent was much smaller than you, working at the time.  No doubt someone with their own stresses and issues to deal with in life, clearly a responsible person, working to earn an income - didn't expect to be punched in the face with such force by you on this occasion (ts 10).

2. His Honour noted that the appellant had admitted that he had 'snapped'.  He then referred to a number of matters that were favourable to the appellant for the purpose of sentencing but concluded that the only appropriate penalty was an immediate term of imprisonment, having regard to the seriousness of the offence and the need for general and personal deterrence.

The relevant principles

1. An appellant must obtain leave on each proposed ground of appeal.  The court must not grant leave unless it is satisfied that the proposed ground has a reasonable prospect of succeeding:  Criminal Appeals Act, s 27. A proposed ground of appeal must have a rational and logical prospect of succeeding or a real prospect of success.

2. The principles that are applied to an appeal against sentence were summarised by the Court of Appeal in Wilson v The State of Western Australia [2010] WASCA 82. The ground of appeal proposed in this instance - that the sentence imposed was manifestly excessive - is an allegation of inferred error. The particulars to the proposed ground suggest that the learned magistrate is alleged to have erred by failing to give sufficient weight to various matters that either singularly or in combination indicated that an immediate term of imprisonment was not the only available sentencing option.

3. In determining whether a sentence is manifestly excessive, the appeal court will have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed for sentences of the relevant type; the seriousness of the offending and the personal circumstances of the offender.  However, the court will not intervene merely because it might have imposed a different sentence to that which has been imposed.  An appellate court may only intervene if there has been a material error of law or fact.  Error may be inferred if the result is unreasonable or unjust:  Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. Further, the court can only intervene if it is satisfied that a different penalty ought to have been imposed. That is so even if an error is demonstrated: Criminal Appeals Act2004 (WA), s 31(4)(a).

The merits of the proposed ground

The Sentencing Act

1. Section 6(1) of the Sentencing Act 1995 (WA) provides that the sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors: s 6(2). A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4).

The maximum penalty

1. The summary conviction penalty for the crime of unlawfully assaulting another and thereby doing that person bodily harm is imprisonment for 2 years and a fine of $24,000.

Comparable sentences

1. The sentences customarily imposed for the offence of assault occasioning bodily harm were reviewed by the Court of Appeal in Kilner v The Queen [1999] WASCA 189, Mourish v The State of Western Australia [2006] WASCA 257 and The State of Western Australia v Cheeseman [2011] WASCA 15. Buss JA observed in Cheeseman that it was difficult to discern any 'tariff' or usual sentencing range for the offence.  However, his Honour noted the comments of Wheeler JA in Holden v The State of Western Australia [2009] WASCA 50 and of the court in Wiltshire v Mafi [2010] WASCA 111.

2. Wheeler JA observed in Holden that:

   [I]n cases which have involved pleas of guilty, a post-transitional range of penalties could appropriately include sentences from 6 months' suspended imprisonment to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].

3. The Court (Pullin and Buss JJA and Mazza J) said in Wiltshire, after referring to the comments of Wheeler JA in Holden:

   The range of sentences imposed for this offence was also considered in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [116] ‑ [173], Mourish [12] and Kilner v The Queen [1999] WASCA 189 [22] ‑ [27]. The review of sentences in these cases suggests that a sentence of 12 months' suspended imprisonment is usually given for assaults less serious than the assault which occurred here [43].

4. The court identified several factors that marked the offending in Wiltshire as serious – see [44] and [46].  One factor that the court identified was the vulnerability of the victim by reason of the difference between his size and weight and that of the offender.  However, the other factors identified by the court indicate that the offending in Wiltshire was more serious than that of the appellant in this matter. 

5. Wiltshire involved a State appeal from a re‑sentencing on appeal from the sentence imposed following a summary conviction.  The offender had been re‑sentenced to a term of imprisonment for 12 months, suspended for 9 months.  The Court of Appeal re‑sentenced the offender to a term of immediate imprisonment of 12 months.  It might be thought that, in this context, the court's observations reproduced above regarding the sentence imposed for the offence of assault occasioning bodily harm were directed to the particular circumstances of the appeal under consideration.  However, in Cheeseman, Buss JA referred to the observations made in Wiltshire in terms that apparently accepted that they expressed a view about the sentence customarily imposed on a summary conviction for the offence.

6. As Newnes JA observed in Ali v The State of Western Australia [2013] WASCA 55, '[l]imited assistance is to be derived from a consideration of sentences imposed in previous cases because the nature and circumstances of the offending in those differ greatly' [17]. It is, of course, necessary to impose a sentence in every case according to the requirements of s 6 of the Sentencing Act – that is, according to the particular circumstances of the offence and the offender.  However, it is important that the sentence imposed in any particular case is consistent with the sentences imposed in comparable cases.  I note in that regard that the appeal against a sentence of immediate imprisonment was allowed in Ali, with the appellant re‑sentenced to a suspended imprisonment order.

The seriousness of the offence

1. There is no doubt that the magistrate correctly identified the factors that aggravated the seriousness of the appellant's offending – the vulnerability of the victim because of his size and the fact that he was working at his work place and the extent of the injuries that he sustained. 

2. However, as has been noted, the offending was less serious than the circumstances considered by the Court of Appeal in Wiltshire.  The assault consisted of one blow, albeit one that involved considerable force.  It was impulsive not premeditated.  The appellant was immediately remorseful – he remained at the scene and made full admissions when interviewed. 

Other factors

1. The magistrate identified a number of factors concerning the appellant's circumstances that were mitigating.  He recognised that it was necessary to balance those matters in determining the seriousness of the offence.  Consequently, the respondent contended that the magistrate had not erred and had imposed a sentence that was within his sentencing discretion. 

2. Plainly, general deterrence was a significant factor in sentencing the appellant having regard to the circumstances in which the offence was committed.  The magistrate also emphasised the need to deter the appellant from offending in the future.  His remarks indicated that he regarded personal deterrence as significant because of the appellant's admission that he had 'snapped' as a result of personal pressures and his frustration over not being able to hire the vehicle. 

3. However, the magistrate did not refer to the appellant's criminal history in considering the need to impose a sentence that acted as a personal deterrent.  The appellant's criminal history disclosed that the appellant had no significant record for offences involving violence.  He had two convictions for offences that did not involve driving a motor vehicle - hindering police and disorderly behaviour in public.  The first of those offences was committed in September 2001; the second in June 2008.   The offences were committed some time ago and although anti-social in nature, they do not suggest that the appellant had any history of violent behaviour. 

4. Accordingly, the assault he committed appears to have been out of character.  In my view, the need to have imposed a sentence that deterred the appellant from offending in the future ought to have been assessed in that context and not just according to the particular circumstances of the offence - the fact that the appellant had 'snapped'.  The fact that the appellant had apparently acted impulsively and out of character also provided the appropriate context within which to assess the factors that admittedly mitigated the seriousness of the offence and the pattern of sentencing for the offence.

5. The factors that were favourable to the appellant were particularly significant in at least two respects.  First, the appellant's remorse appears to have been immediate and spontaneous - reinforcing the view that the offence was out of character.  Second, the appellant's personal circumstances provided what the author of his pre‑sentence report referred to as 'protective factors'.  Those factors included the matters identified in the pre‑sentence report and the fact that the appellant had voluntarily sought counselling immediately following the offence, albeit that the author of the pre‑sentence report recognised that further counselling was required.

Conclusion

1. A sentence will be manifestly excessive if it is outside the range of a sound exercise of the sentencing discretion.  In my view, a term of immediate imprisonment was, in this instance, manifestly excessive, having regard to the pattern of sentencing for the offence of assault occasioning bodily harm identified by the Court of Appeal - the observations made in Wiltshire that a review of sentences for this type of offending indicated that 12 months' suspended imprisonment was usually given for assaults that were less serious than the assault that was considered in Wiltshire - the appellant's relatively good character, his personal circumstances and the steps that he had taken to address the consequences of his offending.

2. Accordingly, I will grant leave to appeal, I will allow the appeal and the appellant is to be re‑sentenced.

3. I sentence the appellant to a term of imprisonment of 7 months.  That term of imprisonment is to be conditionally suspended for 12 months.  There will be program and supervision requirements imposed under s 84A and s 84B of the Sentencing Act.

4. Although the Magistrates Court is not a prescribed court for the purpose of s 81 of the Sentencing Act so that the magistrate could not have made a conditionally suspended imprisonment order, this court can make such an order on re‑sentencing following an appeal from the Magistrates Court (see s 14(1)(i) of the Criminal Appeals Act and Rhatigan v Forbes [2009] WASC 368 [52] ‑ [56] (Hall J).