Flanagan v White - [2007] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FLANAGAN -v- WHITE [2007] WASC 284

CORAM: JENKINS J

HEARD: 22 OCTOBER 2007

DELIVERED : 23 NOVEMBER 2007

FILE NO/S: SJA 1011 of 2007

BETWEEN: TRISTAN WILLIAM ARTHAR FLANAGAN
Appellant
AND
TODD JOSEPH WHITE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S RICHARDSON
File No  :ME 698 of 2006

Catchwords:

Criminal law - Sentencing - Assault occasioning bodily harm - Whether magistrate sentenced on incorrect version of the facts - Whether defence counsel put all relevant mitigatory material before the magistrate - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 24
Criminal Code (WA), s 317(1)
Sentencing Act 1995 (WA), s 20, s 21, s 83

Result:

Appeal allowed
Sentence of imprisonment for 12 months imposed by Magistrate set aside
Sentence of 10 months' imprisonment imposed, suspended for 12 months subject to the standard conditions and a programme requirement

Category: B

Representation:

Counsel:

Appellant: Mr R P Arndt
Respondent: Ms F M Allen

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Mourish v The State of Western Australia [2006] WASCA 257
Nudd v The Queen (2006) 80 ALJR 614

JENKINS J:

The decision under appeal

This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Meekatharra on 10 January 2007. The appeal is against the sentence that the magistrate imposed upon the appellant for the offence of assault occasioning bodily harm. The appellant was sentenced to 12 months' imprisonment. He was made eligible for parole.

Grounds of appeal

The appellant has been given leave to appeal on four grounds. They are:
1.The magistrate erred in deciding that the only appropriate sentencing option was a term of immediate imprisonment;
2.The magistrate erred in failing to give adequate consideration to the question of whether any term of imprisonment imposed ought to have been suspended;
3.The magistrate erred in failing to give any or adequate weight to the opinion expressed in the pre‑sentence report that the appellant was 'deemed suitable for a community based disposition'; and
4.The sentencing process miscarried as a result of the wrongful inclusion in the pre‑sentence report of irrelevant and prejudicial material outside the scope of a pre‑sentence report provided pursuant to the Sentencing Act 1995 (WA) s 21 namely the description of the injuries by the victim and the author of the pre‑sentence report's opinion as to the status of the victim.
In respect to grounds 1 and 2, the appellant relies on two particulars. They are:
1.The error of fact in the pre‑sentence report which stated that the victim was an 'innocent bystander'; and
2.The failure by the appellant's counsel, to adequately put to the court mitigatory factors, namely that the appellant only intended to break up the fight between the complainant and the third party, the appellant did not intend to cause any injury to the complainant, the appellant only struck the complainant once, failing to correct the factual error referred to above, failing to correct or explain the error of fact in the pre‑sentence report that the complainant had been 'king hit from behind', the fact that the appellant had successfully completed a suspended term of imprisonment in the past and that the appellant was involved in a stable family relationship, including responsibilities to his two children aged 3 and 4 years.

Details of charges and proceedings

The prosecution notice alleged that on 30 September 2006 at Meekatharra the appellant unlawfully assaulted Allan Jenkins Jones and thereby did him bodily harm contrary to the Criminal Code (WA) s 317(1).
The appellant, who was then represented by duty counsel, appeared before the magistrate on 13 December 2006 and entered a plea of guilty to the charge. The prosecutor read out the facts. Her Honour then expressed concern that the appellant had a previous conviction for assault occasioning bodily harm for which he had received a suspended sentence of imprisonment. She ordered a pre‑sentence report and adjourned the matter through to 10 January 2007 for sentencing.
On that date the magistrate heard a plea in mitigation and proceeded to sentence the appellant to 12 months' imprisonment with parole eligibility.
The facts as stated by the prosecutor were as follows:
… [the appellant] is 181 centimetres tall and of solid build. The complainant is 175 centimetres tall and of slim build. At about 8 pm on Saturday, 30 September 2006, [the appellant] was at the Meekatharra racecourse located on Wiluna Road, Meekatharra. The complainant was arguing with another person and they shaped up to each other. [The appellant] approached the complainant from the left side and punched him once with a closed right fist to the left side of his face. The complainant was knocked to the ground by the punch and became disorientated. [The appellant] was removed from the area by a family member. As a result of the assault the complainant suffered a broken jaw. He was conveyed to Meekatharra District Hospital and was eventually flown to Perth by the RFDS where he received further medical attention.
On about 4 pm on Sunday, 3 December 2006, [the appellant] attended the Meekatharra police station and participated in a video record of interview and made admissions to the offence. [The appellant] was arrested and the present charge preferred. His explanation was, 'I was drunk and pissed off.'
The pre‑sentence report contained the following information:
The above offence occurred on the day of the Australian Football League grand final on 30.09.06. [The appellant] stated he was at the Meekatharra racecourse, where he had been drinking Toohey's Extra Dry beer all day. [The appellant] couldn't give an accurate description of the amount of beer he had drunk, just stating 'it had been a lot'. [The appellant] then advised he had an altercation with his cousin over something insignificant. After the altercation [the appellant] was speaking with his aunt when his cousin came up and pushed into him, resulting in him bumping into his aunt causing her to fall over. [The appellant] said he became enraged at his cousin for causing his aunt to fall and said he impulsively lashed out at the victim who was standing by. [The appellant] stated he didn't know the victim and had never met him before in his life.
[The appellant] attributed his actions to an over indulgence in alcohol and hesitantly admitted he may have an anger management issue. However he stated this kind of behaviour is extremely unusual for him.
These events were discussed with the victim who has received injuries which require ongoing medical treatment. The victim claims he was king hit from behind by [the appellant], being struck on the right side of his face between his chin and ear on the jaw. He also described how his jaw was snapped in two and needed urgent medical attention by way of the Royal Flying Doctor. The victim says he is still undergoing medical attention, needing operations to insert metal plates into his jaw. The damage to the jaw can be seen by a large protrusion under the skin and the victim has some difficulties speaking clearly.
The pre‑sentence report contained the standard information concerning the appellant's court history, family background, marital situation, education and employment, financial situation and history of substance abuse. The author noted that the appellant had been in a de facto relationship for approximately seven years and that the couple had two children aged 3 and 4 years. The author went on to say:
[The appellant] was asked if his children were ever witness to a violent outburst from him and he said they had. He described how at those times his children wouldn't come near him for days as they were scared. He found this extremely hard to deal with as he knew he was the cause of the fear they felt. [The appellant] stated he realises how inappropriate it is for a father to act in the way that he did.
In respect to the appellant's employment, the author recited his employment history and then said that he was currently employed through the Community Development Employment Programme (CDEP) at Buttah Windi Community. In respect to the appellant's financial position, the author noted that he was receiving CDEP payments of $420 a fortnight and owed $3,825.62 in unpaid fines. In respect to substance abuse, the author noted that the appellant advised that he did not usually drink to excess but that if he did he had the potential to explode at situations he would normally let pass. The appellant agreed with the author that he would benefit from substance abuse and anger management counselling.
The author in summary said:
[The appellant] presented as a mature young man who has a young family for which he trys [sic] to provide for them in way of stable employment. He has mainly held employment since finishing school and his Court History is not extensive. However this is the second time [the appellant] has come to the attention of the Courts for an Assault Occasioning Bodily Harm indicating he may have some anger and substance abuse issues which have not been addressed especially as his current victim was an innocent bystander.
All sentencing options have been discussed with [the appellant]. Should the Court be considering a community based option, appropriate supervision and programme requirements may allow [the appellant] to address his anger management and substance abuse problem. [The appellant] is deemed suitable for a community based disposition.
On 10 January 2007, when the appellant appeared again before the magistrate, her Honour noted that she had received the pre‑sentence report. The duty counsel, who was then appearing for the appellant, acknowledged that the appellant had alcohol and anger management issues which he needed to do something about. He noted the previous conviction for assault occasioning bodily harm in 2002 but submitted that otherwise the appellant had a relatively minor record. Counsel submitted that the appellant regretted his actions and that he was willing to comply with an order with counselling and supervision and to pay a substantial fine. He said that he had been told that the victim had filed a criminal injuries compensation claim.
The magistrate then remarked: 'It's certainly a very serious injury to an innocent bystander'. Counsel acknowledged that by saying 'Yes'.
The prosecutor submitted that it was an extremely serious assault. The prosecutor also referred to the fact that the victim was an 'innocent bystander'. He submitted that the offence warranted a term of imprisonment and that if the magistrate was not minded to impose an immediate term, in addition to a suspended term of imprisonment, it would be appropriate to fine the appellant and order that the fine be made payable to the complainant. The prosecutor submitted that this would be an immediate penalty which would be an ongoing deterrent to the appellant.
The magistrate then delivered her reasons for imposing an immediate term of imprisonment on the appellant. She commenced by noting that the appellant owed a considerable amount in outstanding fines and that when the pre‑sentence report was written he had not done anything to organise paying those off. This caused the magistrate to doubt that the appellant was likely to meet any commitment to pay a fine she may impose.
In respect to the facts, the magistrate noted that the appellant seemed to have been highly intoxicated at the time the offence was committed, upset by dealings with his family and, in exasperation, he lashed out at a 'bystander', punching him to the face, breaking his jaw in several spots and creating very serious harm to him. The magistrate noted that she understood that the harm was ongoing. The magistrate said that 'it was a totally unprovoked assault'. Her Honour said that the complainant 'just simply happened to be standing in the wrong place at the wrong time and was the recipient of [the appellant's] extreme aggression'.
The magistrate said that the appellant had a relatively minor criminal record and that in 2006 and 2005 he had been fined for offences of unlawful damage. She also said that in 2002 the appellant had been sentenced to 6 months' imprisonment suspended for 8 months for an offence of assault occasioning bodily harm.
The magistrate noted that the court had to be satisfied that imprisonment was an appropriate term before it could be imposed, the harm which the victim had suffered, the appellant's good work history and the fact that he had a young family. Her Honour then said:
It is my view that given the seriousness of the matter before the court today and having taken into account the various matters put up in mitigation as regards yourself ‑ and, as I have said, I have read the report and heard the submissions of Mr Reading, but also taking into account the very serious nature of the offence and the injury that has been caused, a penalty must be imposed which is one which provides deterrence in terms of people behaving in such a manner. As I have said, this was an innocent bystander who was the recipient of the force of your fist at the time.
It is my view that deterrence both to the public as regards this type of offending and certainly to yourself can only be attained through an immediate term of imprisonment given the seriousness of the offence that is before the court. As regards this particular offence ‑ and it is one that is not aggravated, so, in other words, a straightforward AOBH ‑ the maximum I can impose is one of two years. Now, that term has been increased since the amendments which were made under the 2003 Sentencing Act amendments so I don't need to deduct a third from that because, as I said, it was passed into legislation subsequent to the one‑third deduction being imposed as regards other matters.
Taking into account all matters in relation to this particular assault, it seems to me that a term of 18 months' imprisonment would be appropriate given the very serious nature of what has happened. Taking into account further the timing of your plea, I intend to reduce that by one third. That is a discount for your early plea, taking that down to some 12 months. I impose an immediate term of imprisonment of 12 months.
The magistrate then determined that the appellant should be made eligible for parole.

Additional evidence

On appeal, the appellant tendered, by consent, his affidavit, sworn 21 February 2007.
In the affidavit the appellant deposed that on 30 September 2006, prior to arriving at the Meekatharra Racecourse, he had consumed about six to eight full strength cans of beer. After arrival at the Racecourse and over the course of about three hours he consumed a further six cans of full strength beer. At about 8 pm he saw his cousin and the complainant shaping up to have a fight. He did not know the reason for the fight. He was concerned about his cousin being involved in a fight and feared that he might be seriously injured because he believed that the complainant was regularly involved in fights with other people in Meekatharra and had trained as a boxer. He said that he struck the complainant once with the intention of preventing him from fighting his cousin. He accepted that with the benefit of hindsight that it was not necessary to punch the complainant in order to achieve this aim.
The appellant deposed that he was very disappointed with the lawyer who represented him as he did not tell the court any of the matters which he thought the court should have known in deciding how to sentence him. The matters included his explanation for the offence, his personal and family circumstances, his involvement in community organisations, that his de facto wife and his children are financially dependent on him and that there was an error in the pre‑sentence report which described the complainant, incorrectly, as an 'innocent bystander'. It is implicit in the terms of the affidavit that his lawyer was aware of these matters.
He deposed that he was 24 years of age and left school after completing Year 10. He had worked continuously since leaving school in 1997 as a station hand, gardener, labourer, apprentice mechanic and as a geological technical officer. He had completed 2 1/2 years of a four year apprenticeship as a mechanic and had been in employment with the Meekatharra CDEP Scheme since late 2003 to late 2006.
He deposed that he had been in a de facto relationship with his partner since 1992 and there are two children of this relationship, then aged 5 and 4. The family live together in Meekatharra and he is very close to his children.
I note that the appellant was in custody in respect to this sentence between 10 January and 2 March 2007. Since his release on bail he has been employed by the Shire of Meekatharra as a labourer on a part time basis. He is on probation with the Shire and hopes to obtain full time employment with them in the future. The appellant's bail conditions require him to report to the Meekatharra Police Station four times a week. He has, apparently, been complying with those bail conditions for the past eight months.
I was also advised at the hearing of the appeal of the facts in respect to the appellant's conviction in 2002 for assault occasioning bodily harm. I was told that a fight had occurred late one night outside licensed premises between a security officer and patrons of the premises. After the security officer had been assaulted on numerous occasions by others and was lying injured on the roadway, the appellant kicked him.
By consent of the parties, the appeal is determined on the material that was before the magistrate and the additional evidence referred to above.

Grounds 1 and 2

It is convenient to deal with grounds 1 and 2 at the same time. The starting point for a consideration of these grounds of appeal is the first particular relied upon by the appellant. It is that the magistrate, in essence, sentenced the appellant on a misunderstanding of the facts. The appellant submits that there was a factual error made in the pre‑sentence report where it stated that the complainant was an 'innocent bystander' and that that error was picked up by the presiding magistrate. It is submitted that the magistrate relied upon the error and consequently did not take into account that there was mitigation in the circumstances of the commission of the offence. That mitigation being that the appellant had assaulted the complainant because he was shaping up to fight the appellant's relative and the appellant was concerned for the safety of his relative.
This alleged error must be considered in conjunction with the next particular of the ground of appeal, that being that the appellant's then counsel failed to put to the court all relevant mitigatory factors.
In my opinion, the only mitigatory factor that the magistrate did not take into account in determining the appropriate penalty for the appellant was that he had struck the complainant because he was shaping up to his relative and he was concerned for his relative's safety. It seems to me that the magistrate was well aware of the matters personal to the appellant, which mitigated his offence. These appeared in the pre‑sentence report, which the magistrate took into account.
In my view, the appellant's explanation for the offence, that is that he acted in excessive defence of his cousin was relevant to sentence. Further, the magistrate, in sentencing the appellant, clearly used a version of the events which was inconsistent with the version asserted by the appellant.
It was the appellant's counsel who was obliged to present mitigatory material. On the facts as presented on appeal, he did not do this. Alternatively, given the account of the facts in the pre‑sentence report, when the magistrate and the prosecutor commented that it was an assault on an 'innocent bystander' there was an obligation on the appellant's counsel to say that the appellant did not accept that version of the facts. If he had done so, the issue could have been resolved, if necessary, by the calling of evidence. Not only did the appellant's counsel not present the mitigatory material but when the magistrate put the proposition to him that the complainant was an 'innocent bystander', the appellant's counsel assented to it.

Therefore, in my opinion, the issue becomes whether the appeal ought to be allowed on the ground that the appellant's counsel failed to put all relevant information before the court. Courts are reluctant to allow appeals on such a ground unless counsel's omission has resulted in a miscarriage of justice. This is because parties are usually bound by the way they run their cases at first instance: Nudd v The Queen (2006) 80 ALJR 614.
I am satisfied that the appellant's counsel's failure to reject the magistrate's assertion to him that the complainant was an 'innocent bystander' and to put forward the appellant's version of events resulted in a miscarriage of justice. This is because it deprived the appellant of being given the opportunity to be sentenced on his version of the facts. Further, if he had been sentenced on that version of the facts, I am satisfied that he most likely would not have received an immediate custodial penalty.
By these findings I do not criticise the practitioner who acted for the appellant before the magistrate. It would be quite wrong of me to do so as I have not heard his side of the story. Rather, I make these findings on the basis that the respondent has consented to me determining the appeal on the basis of the evidence before me and does not seek to rebut any allegation of fact made by the appellant in the additional evidence.
I have already explained that it is clear from the remarks made by the magistrate that she relied significantly on the view that the complainant was an 'innocent bystander', that the offence was 'unprovoked' and that the appellant simply 'lashed out'. However, it is still necessary for me to explain why I am of the view that by sentencing the appellant on this version of the events, the appellant lost a reasonable opportunity of being sentenced to a lesser penalty.
In Mourish v The State of Western Australia [2006] WASCA 257 the Court of Appeal determined an appeal by Mourish, a repeat offender, against a sentence of 2 years' imprisonment, suspended for two years, imposed on him for the offence of assault occasioning bodily harm. The Court of Appeal, in dismissing the appeal, reviewed sentences imposed in a further eight cases for the same offence. In each of those cases a sentence of imprisonment between six months and two years had been imposed on the offender either by the court at first instance or on appeal. In two of the cases the sentences had been suspended. In Mourish, whilst acknowledging that a two year sentence was 'severe', the Court of Appeal dismissed the offender's appeal against the severity of the sentence.
Even having regard to the additional evidence, it cannot be said that a sentence of 12 months' imprisonment was outside the range of sound sentencing discretion for the appellant's offence. In my view, it was the appropriate sentence for the offence at the time the appellant was first sentenced, even having regard to the additional evidence before me. The cases reviewed by the Court of Appeal in Mourish indicate that for quite some time this court in its appellate judgments, has indicated that the offence of assault occasioning bodily harm, if it is accompanied by serious injury to the complainant, can be expected to attract a sentence of imprisonment. Offenders who are minded to commit this offence should be aware that in the absence of very significant mitigatory factors, such a sentence will be imposed by the courts. The factors relied upon by the appellant do not meet this test.
The magistrate's discretion not to suspend the sentence of imprisonment was a wide one, as long as she considered all relevant matters. The case of Mourish and the other cases referred to in it, show that even where the assault is serious, offenders may be given the opportunity to serve their sentence in the community. Having regard to the additional evidence that is now before me and had this evidence been before the magistrate, her Honour may well have exercised her discretion to suspend the sentence of imprisonment on conditions.
Consequently, I am of the opinion that a miscarriage of justice has occurred and that the appeal ought be allowed. The consequences of this are that the appellant should be re‑sentenced. I am in a position to do that as neither the appellant nor the respondent seeks to put any further matters in respect to sentence before the court.
Even having regard to the personal circumstances of the appellant and relying upon the version of the facts asserted by him, this was a serious offence which required the imposition of a sentence of imprisonment. General and personal deterrence are matters relevant to sentence. As I have said, an appropriate sentence for this offence was 12 months' imprisonment. The appellant has served approximately two months of that sentence. I would deduct this time and impose a sentence of 10 months' imprisonment.
Within the statutory limitations, my discretion to suspend that sentence of imprisonment is expressed in very wide language. In determining whether a sentence of imprisonment should be suspended I must consider whether all the relevant circumstances require the sentence to be served immediately. Whilst general deterrence is a factor, I must also have regard to the proper rehabilitation of the offender and to whether the offender is likely to benefit from the suspension of the term of imprisonment, which will also ultimately benefit the community.
I also take into account the facts upon which I must now sentence the appellant. They provide some mitigation and also remove elements of aggravation, being that the appellant had deliberately assaulted a stranger for no reason.
I also take into account that the appellant has spent two months in custody and eight months on bail.
I conclude that the sentence of imprisonment ought to be suspended for a period of 12 months subject to the standard obligations in the Sentencing Act s 83 and a programme requirement to address the appellant's anger management and alcohol abuse issues.
I have also considered whether, as the prosecutor suggested, the appellant ought to be fined and the fine ordered to be paid to the complainant. For the reasons expressed by the magistrate, I do not believe it is appropriate to impose a fine in addition to the other penalties I have referred to.

Ground 3

Because of my decision in respect to ground 2, it is unnecessary for me to deal with this ground. However, I wish to make some comments in respect to it.
It is common for pre‑sentence reports to express views that an offender is or is not deemed suitable for a community based disposition. Such a comment is not binding upon a judicial officer. In this case, it was merely one matter which the magistrate had to take into account in determining the appropriate sentence for the appellant. The magistrate said that she had read the pre‑sentence report and I have no reason to doubt that she took it into account. Nothing more was required of her.

Ground 4

As I would allow this appeal on another ground I do not intend to deal with this ground. The other reason why I do not deal with it is that the respondent did not address its substance but rather argued the appeal on the basis that even if the appellant was correct in respect to this contention, the court should dismiss the appeal because no substantial miscarriage of justice had occurred: Criminal Appeals Act 2004 (WA) s 24. Consequently I did not hear argument on the correctness of this view and I refrain from expressing an opinion on it.

Conclusion

For the above reasons I would allow the appeal and set aside the sentence imposed by the magistrate. I substitute a sentence of 10 months' imprisonment, suspended for a period of 12 months subject to the standard conditions and a programme requirement to address the appellant's anger management and alcohol abuse issues.