Gray-Herewini v Lee
[2013] WASC 200
•24 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GRAY-HEREWINI -v- LEE [2013] WASC 200
CORAM: HALL J
HEARD: 21 MAY 2013
DELIVERED : 24 MAY 2013
FILE NO/S: SJA 1050 of 2013
BETWEEN: SHALENA JOYCE GRAY-HEREWINI
Appellant
AND
JASON LEE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R G W BAYLY
File No :PE 51917 of 2012
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether 9 months' immediate imprisonment manifestly excessive - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr L M Fox
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68
Chan (1989) 38 A Crim R 337
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Flanagan v White [2007] WASC 284
Harvey v Ingles (2004) 40 MVR 398; [2004] WASC 30
Holden v The State of Western Australia [2009] WASCA 50
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnson v Hayter [2001] WASCA 118
Pearson v Newton [2010] WASC 98
R v Vachalec (1981) 1 NSWLR 351
Shoard v Van Der Zanden [2013] WASC 163
Stoker v Raitt [2009] WASC 40
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
HALL J:
Introduction
On 19 March 2013 the appellant was sentenced in the Magistrates Court to 9 months' imprisonment for an offence of unlawful assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA). She now seeks leave to appeal against that sentence.
There is a single ground of appeal. It asserts that the magistrate erred by failing to suspend the term of imprisonment in light of the appellant's antecedents, personal circumstances and her prospects of rehabilitation, taken together with the personal deterrence provided by the threat of activation of a suspended sentence. In essence this ground of appeal asserts that the sentence imposed was manifestly excessive. No express error is identified and counsel for the appellant confirmed on the hearing of the appeal that the appellant was relying upon an inference of error based upon the outcome.
Background
It appears that there was initially some dispute as to the facts. However, that dispute was resolved and on 19 March 2013 agreed facts were read to the court. Those facts can be summarised as follows.
At about 12.40 am on Saturday 6 October 2012, the appellant was walking over the horseshoe bridge on William Street, Perth. She was in company with a number of friends, being three females and a male. Another group of people, which included the victim, were also crossing the bridge. As the two groups approached each other the appellant bumped shoulders with the victim and yelled 'Watch out you'.
The contact with the victim was forceful enough to cause him to spin around. As he spun around he swung a bag he was carrying towards the appellant and said 'You can't do that'. The appellant became angry and yelled at the victim. The victim then placed his bag in front of his body to protect himself.
The appellant approached the victim and threw several punches and kicks towards him connecting with his face and body. The male friend of the appellant then grabbed the victim by the shoulders and threw him to the ground. This male friend was subsequently charged with common assault.
Whilst the victim was on the ground the appellant kicked and punched him to the body and to the head several times. This caused the victim to curl up into a ball in order to protect himself. Another female who was present attempted to protect the victim by covering his head with her body. It was unclear from the facts whether this female was a friend of the appellant's or a friend of the victim's, but nothing turns on that. In any event, another person present, who was a friend of the appellant, then went to check on the victim's welfare and yelled 'For god sake stop, I'm trying to check if he is okay'. It was only at this point that the appellant ceased her attack upon the victim.
By the end of the assault the victim was in a semi‑conscious state. He had sustained a broken nose and bruising and swelling around the face and body. One of his teeth had been knocked out by the force of the blows. He had a laceration underneath his nose which subsequently required several stitches. Photographs tendered in the Magistrates Court confirmed these injuries.
A victim impact statement referred to the fact that the injuries had required medical treatment. Medical expenses were estimated at over $6,000 and a quotation for dental treatment was provided in support of this estimate. The victim referred to his inability to afford the necessary treatment. He also said that he has suffered anxiety and humiliation following the assault, and this has made it difficult for him to go out at night. He bears a scar on his upper lip which attracts comments and has been told that his broken nose will require surgery. Due to the injuries the victim was unable to attend his best friend's wedding which occurred the day following the attack.
Proceedings in the Magistrates Court
The appellant first appeared on the charge on 19 November 2012 when the matter was adjourned to enable her to obtain legal advice. She next appeared on 13 December 2012 when a plea of guilty was entered and a pre‑sentence report ordered. As there was a dispute as to the facts, the matter was set down for a trial of issues on 19 March 2013.
The pre‑sentence report states that the appellant explained that the offence occurred as a consequence of excessive alcohol consumption. The appellant told the author of the report that she did not have a recollection of her behaviour but expressed regret and shame. She was said to have shown significant insight into how her offending may have impacted on the victim. She confirmed that the victim was unknown to her.
The pre‑sentence report noted that the appellant was 21 years old and had a 3‑year‑old child. The child had been born as a result of a relationship which was characterised by frequent domestic violence and her partner's alcohol and drug use. That relationship had ceased in April 2011.
The report noted that the appellant admitted that since 2011 she had started to binge drink. The report's author concluded that alcohol abuse was 'the main facilitating factor' in the current offending and that should the appellant 'not undertake targeted intervention to address these issues, her risk of reoffending in a similar manner is highly likely'.
On 19 March 2013 the facts were admitted and the appellant's solicitor made submissions in mitigation. He said that the appellant had sole custody of her young child. The appellant was in full‑time work and the child was cared for during work hours by the appellant's mother for two days a week and was in childcare for three days a week.
It was submitted that the appellant had a limited record of prior offending and that this offence was out of character. It was, however, conceded that a previous offence of criminal damage in June 2012 involving throwing a shoe and damaging the panel of a car was also alcohol‑related.
It was said that the appellant had expressed remorse for her conduct. This was reflected in a letter that she had written to the victim in December 2012. A copy of this letter was tendered to the Magistrates Court. In it the appellant accepted that there was no excuse for her actions and that she had overreacted whilst under the influence of alcohol. She said that she intended to undergo counselling sessions to address her personal issues and expressed a desire to change for the better. It should be noted that this letter of apology was written at a time when the facts remained in dispute. The extent to which that letter involves a complete acceptance of responsibility is therefore open to question.
Character references were tendered from a family friend and work colleagues and supervisors. They referred to the appellant's past history of domestic violence and her resolve to change her life for the better. They referred to the appellant's otherwise good character, her remorse and her positive approach to work.
Sentencing
After referring to the facts of the offence and the impact on the victim the magistrate said:
It is very important in our society that members of the public can feel free to walk whenever and wherever they want to on the streets of Perth, particularly in central Perth at night-time, without the fear of being attacked in the way that this complainant was. In my view, based upon the facts, the attack particularly when it was on the ground was unprovoked which was an aggravating feature. Further aggravating features are: the assault involved multiple blows, including kicks to the head whilst the accused was on the ground; the assault only stopped when a friend of yours lay over the complainant to protect him; the injuries which were sustained by the complainant were serious; and this incident occurred in public.
The courts really wouldn't be doing their job if they didn't send a strong message that this type of behaviour in the streets will not be tolerated. You are now 21 years of age. The pre-sentence report that I obtained indicates that you came from New Zealand when you were 13. You were not particularly happy about that and you rebelled at the age of 16. You left home and got into a relationship which turned violent. As a result of that relationship, you have one child who is now three who you look after and you also work on a full-time basis with Toll in order to support that child. As I understand it, the child is looked after in childcare by a relation of yours whilst you are working. Of course, that's all to your credit.
Your record is not particularly serious. You have a previous conviction for stealing in December in which you were fined $300 and a damage charge on 10 August 2012, relating to an incident as I understand it in the Northbridge area which occurred on 17 June and involved you throwing a shoe at a car. Clearly, on the night in question you were under the influence of some substance. According to the pre-sentence report it was alcohol.
You do have references which speak highly of you. Particularly impressive are the references from Toll, both the chaplain from Toll and the manager at Toll and they are of course much to your credit. You have worked after finishing your schooling as a hairdresser and also now work for Toll in the capacity which is referred to in their reference.
Whilst in determining a sentence, it is important to take into account your antecedents, such as your youth, your lack of serious record, your plea of guilty, the letter of remorse which you wrote, the fact that you are working and looking after a child, but I also have to consider the seriousness of the offence with which you have been convicted. In my view, a serious attack upon a person in a public place such as the street which involves kicking to the head and results in serious injury must in my view be visited by a term of imprisonment.
It's important both from your point of view and the point of view of other members of the public that the courts will not tolerate violence of this type on the streets in circumstances that this offence was committed. It is inexcusable and it is a very serious offence. This man could have died. He didn't, of course, he just sustained severe injuries. Why you acted in the way you did is difficult to determine. One can understand perhaps why there was some argy-bargy to begin with but then to kick him in the head whilst he was on the ground is inexcusable.
The facts in this case in my view are so serious that the only sentence appropriate is a sentence of immediate imprisonment. I have considered whether to suspend that term. In my view this assault in a public place, as it was, is too serious for that. In my view, the appropriate term of imprisonment, had it not been for your early plea of guilty would have been 12 months but in the circumstances, having regard to your plea of guilty, I will reduce that term of imprisonment to one of nine months. You will therefore be imprisoned for nine months (ts 2 ‑ 4 19 March 2013).
Fresh evidence
The appellant applied to admit fresh evidence on the appeal in the form of an affidavit from her mother dated 10 May 2013. That affidavit related to the emotional impact that the appellant's imprisonment has had upon her child. It was submitted that the likely detrimental impact of the appellant's imprisonment on her child was a fact that was 'not properly appreciated' at the time of sentence.
The respondent objected to the tender of the affidavit. It was submitted that this was not a case where facts in existence at the time of sentencing were either not known or properly appreciated by the sentencing magistrate. The fact that the appellant was the carer for her young child was raised by the magistrate in sentencing submissions and it was said to be obvious that imprisonment would have some impact upon the child.
The principles to be applied to an application to admit further evidence on appeal were recently discussed in Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] ‑ [30] (Newnes JA, Pullin & Mazza JJA agreeing). The general rule is that an appeal court must decide an appeal on the evidence and material before the court below. An appellate court is not entitled to intervene on the basis of events which have occurred since the sentence was imposed. Accordingly, evidence will not usually be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time.
In Colwell, the particular provision under consideration was s 40(1)(e) of the Criminal Appeals Act 2004 (WA). That provision applies to any appeal. It provides that on the hearing of an appeal an appeal court may admit any other evidence. On the hearing of this appeal, counsel for the appellant submitted that an additional power existed in the case of appeals to a single judge from the Magistrates Court under pt 2 of the Criminal Appeals Act. Pursuant to s 14(5) on such an appeal against sentence, the court 'may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard'.
In my view, whilst s 14(5) is expressed in different terms to s 40(1)(e) it does not follow that evidence of matters that have occurred since a sentence was imposed will necessarily be admissible on an appeal against that sentence. The power contained in s 14(5) is discretionary. That discretion must be guided by the fact that the proceedings are appellate in nature and not simply an exercise in resentencing.
As Newnes JA noted in Colwell, there are good policy reasons why an appellate court should not intervene upon the basis of events that have occurred since a sentence was imposed. It is not the function of the courts to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: see Colwell [29]; R v Vachalec (1981) 1 NSWLR 351, 353 ‑ 354; Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45]. That is a principle equally applicable to appeals against sentences imposed in the Magistrates Court.
In the present case, it is clear that the magistrate was conscious of the fact that the appellant was the primary carer for her child. This was a matter referred to in the pre‑sentence report and also raised by the magistrate in sentencing submissions. His Honour also made specific reference to that fact in his sentencing remarks. Nor am I able to conclude that the magistrate failed to appreciate the possible impact that the appellant's imprisonment would have upon her child.
Having regard to the contents of the affidavit, there is nothing in it which is of a remarkable or exceptional nature. It makes reference to the fact that the child is missing her mother and that there have been some behavioural changes as a consequence. However regrettable this may be, it is not unexpected. These are not matters that it would be possible to conclude that the magistrate had not anticipated.
For these reasons, I decline to admit the affidavit into evidence on the appeal. However, even if the affidavit was admitted there is nothing in it which is of sufficient significance that it could support a conclusion that the magistrate's discretion erred.
Merits of the appeal
The general principles on which an appellate court operates are well known: see Wilson v The State of Western Australia [2010] WASCA 82 [2].
A ground of appeal that asserts that a sentence is manifestly excessive is a complaint of implied error, that is, whilst there may be no express error that can be identified, it is said that the sentence imposed was inappropriate having regard to all the circumstances such that it can be inferred that the magistrate erred in the exercise of his discretion.
To determine whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentences customarily imposed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of offences of this type and the personal circumstances of the offender: see Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).
The maximum penalty for an offence of assault occasioning bodily harm without circumstances of aggravation is 5 years' imprisonment. This is the relevant maximum to take into account. The summary conviction penalty is 2 years' imprisonment. The fact that a magistrate can only impose a maximum of 2 years' imprisonment is merely a jurisdictional limit: see Wiltshire v Mafi [2010] WASCA 111.
As to the standards of sentencing customarily observed for offences of this type, it is difficult to discern a usual sentencing range. In Holden v The State of Western Australia [2009] WASCA 50, Wheeler JA referred to sentences being imposed for this offence for a plea of guilty of between 6 months' suspended imprisonment to 2 years' immediate imprisonment. A range, even if one can be determined, does not set the boundaries of sentencing discretion. In any event, it is clear that a wide range of sentences has been imposed for offences of this type. That is because the offence can occur in a wide range of circumstances. Factors which may be relevant in sentencing include the manner and duration of the assault, whether there was any provocation and the nature of the injuries inflicted.
I have had regard to the cases referred to by Buss JA in The State of Western Australia v Cheeseman [2011] WASCA 15, [73] ‑ [79]. I have also considered Langdon v Kelemate-Leoli-McLean [2011] WASCA 26; Johnson v Hayter [2001] WASCA 118; Harvey v Ingles (2004) 40 MVR 398; [2004] WASC 30; Wiltshire v Mafi; Griffiths v Procopis [2012] WASC 40 and Shoard v Van Der Zanden [2013] WASC 163.
The appellant has pointed to cases where offences of assault occasioning bodily harm had attracted suspended terms of imprisonment: see Flanagan v White [2007] WASC 284; Stoker v Raitt [2009] WASC 40; Pearson v Newton [2010] WASC 98. However the fact that a suspended sentence of imprisonment has been found to be appropriate in other cases does not necessarily lead to a conclusion that a failure to impose one in this case constitutes an error. The outcome in each case will be influenced by its own particular facts.
Sentencing involves the exercise of a judicial discretion. Where there is no express error but the outcome is one that on the facts is unreasonable or plainly unjust, the appellate court may infer that there has been a failure to properly exercise a discretion which the law reposes in the court of first instance: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.
In the present case the appellant does not seek to argue that a sentence of 9 months' imprisonment would be outside the range otherwise appropriate for an offence of this nature. What is submitted is that the particular personal circumstances of the appellant justified the suspension of that sentence. In order to succeed the appellant must show that it was not open for the magistrate to impose the sentence that he did in the proper exercise of his sentencing discretion. That is to say, the magistrate's conclusion that the sentence should not be suspended must be shown to be one that was not properly open in all of the circumstances.
In this case there were a number of factors which made the circumstances of the offending serious. They included:
1.that the assault was unprovoked. Whilst reference was made to the victim having swung his bag at the appellant after being bumped, this could not on any reasonable assessment be seen as being a provocation for the assault which followed;
2.the assault involved multiple blows, including both kicking and punching;
3.the appellant continued to assault the victim when he was on the ground, offering no resistance and clearly vulnerable. The continuation of the assault in these circumstances was a serious aggravating circumstance;
4.the appellant only desisted because one of her friends told her to stop. Clearly the concern shown by others at the scene for the welfare of the victim was not shared by the appellant, at least up until this point;
5.the blows were aimed principally at the victim's head and thereby carried the risk of very significant injury;
6.the nature of the injuries sustained by the victim attest to a significant use of force on the part of the appellant;
7.the appellant's injuries were not of a minor nature, they required medical attention and have resulted in scarring and longer term emotional effects;
8.the assault occurred in a public place and on a victim unknown to the appellant. Apparently random acts of violence of this nature require a sentence with a significant component of general deterrence.
There were some factors in the appellant's favour. These included that she entered a plea of guilty at a relatively early stage. The magistrate reflected this factor in discounting the sentence that he would otherwise have imposed by 25%: s 9AA Sentencing Act.
The appellant was also a relatively young person, being 21 at the time of the offence. She had a limited prior record and had never previously been imprisoned. She also had expressed remorse and a willingness to address her issues with alcohol. These were factors expressly referred to by the magistrate. Whilst clearly relevant they do not necessarily lead to a conclusion that a sentence of imprisonment to be immediately served was inappropriate. Much will depend upon the particular factual circumstances of the offence. In some cases an immediate sentence of imprisonment will be appropriate even in the case of a young first offender. In this case the appellant, whilst relatively young, was certainly old enough to understand the need to take responsibility for her actions. She must also have known of the potential consequences of binge drinking. Her record was not extensive but it did include a previous offence that arose in circumstances of drunkenness.
The most significant factor upon which the appellant places reliance is the fact that she is the mother of a young child. Whilst this is a relevant factor it cannot operate so as to immunise an offender in the appellant's position from the consequences of her actions. In some cases, the courts may exercise a degree of leniency in respect of a mother of a very young child where that child would otherwise have no‑one to care for him or her. In this case the child is being cared for by the appellant's mother and there is no suggestion that that care is not adequate and appropriate. Hardship to an offender's child cannot generally be taken into account. Such hardship must be extreme or exceptional if it is to justify an offender avoiding imprisonment where that sentence is otherwise appropriate: Abfahr v The State of Western Australia [2013] WASCA 87, Buss JA [71] (McLure P and Mazza JA agreeing).
Conclusion
In Shoard v Van Der Zanden, I recently noted that the commission of offences of this type by relatively young men whose aggression is fuelled by alcohol is not unusual. Regrettably the same is true of young women. As I also noted, magistrates are well placed to see the impact of alcohol‑related offences. Assaults in public places upon random members of the public not only impact upon the victim they raise concerns for public safety. It is appropriate for the courts to address those concerns by imposing sentences that will act as a realistic deterrent.
The consumption of alcohol and its consequent effects upon judgment and aggression do nothing to mitigate offences of this type. Those who choose to drink to excess cannot expect that their actions will be excused. In this case the appellant had good reason to know that there was a risk she would become inappropriately aggressive under the influence of alcohol. Whilst she has taken steps to address her binge drinking since the commission of the offence, that does nothing to minimise the seriousness of the circumstances.
There may be cases of assault causing bodily harm where a suspended sentence is appropriate. Whether that is so may depend significantly on the circumstances of the offence. Here the circumstances were serious; the assault was particularly vicious and resulted in significant injuries to the victim. It was an assault that continued while the victim was on the ground and defenceless. It occurred in a public place on a person unknown to the appellant.
Having regard to the circumstances of the offence I am unable to conclude that a sentence of 9 months to be immediately served was manifestly excessive. Such a sentence was clearly properly open to the magistrate having regard to all of the factors, including those personal to the appellant. Whilst the sentence imposed here was higher than that in Shoard v Van Der Zanden the injuries inflicted by the appellant were significantly more serious. It was also open to the magistrate to conclude that notwithstanding personal factors favourable to the appellant, a suspended sentence was inappropriate. In these circumstances the appeal must fail.
Accordingly, the following orders are made:
1.Leave to appeal refused.
2.Appeal dismissed.
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