Harvey v Ingles

[2004] WASCA 30

HARVEY -v- INGLES [2004] WASCA 30

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 30
Case No:	SJA:1121/2003	Heard:	2 MARCH 2004
Coram:	MCKECHNIE J	Delivered:	2/03/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	D
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Parties:	RONALD WILLIAM HARVEY ROHAN INGLES
Catchwords:	Criminal law Sentence Assault occasioning bodily harm Road rage Whether sentence of imprisonment appropriate Need for general deterrence
Legislation:	Criminal Code (WA), s 317A
Case References:	Hayden v The Queen [2003] WASCA 210 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HARVEY -v- INGLES [2004] WASCA 30 CORAM : MCKECHNIE J HEARD : 2 MARCH 2004 DELIVERED : 2 MARCH 2004 FILE NO/S : SJA 1121 of 2003 BETWEEN : RONALD WILLIAM HARVEY

Appellant

AND

ROHAN INGLES
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MALLEY SM

File Number : AR 3709 of 2003

Catchwords:

Criminal law - Sentence - Assault occasioning bodily harm - Road rage - Whether sentence of imprisonment appropriate - Need for general deterrence

Legislation:

Criminal Code (WA), s 317A

(Page 2)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : Mr R D Young
Respondent : Mr R K Malhotra

Solicitors:

Appellant : Gunning Young
Respondent : State Director of Public Prosecutions

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

Hayden v The Queen [2003] WASCA 210

Case(s) also cited:

Nil


(Page 3)

1 MCKECHNIE J: The appellant was charged on 30 April 2003 that on 1 September 2002 he unlawfully assaulted Brett Allan Schofield (the complainant) and thereby did him bodily harm: s 317(1) Criminal Code. He pleaded not guilty. The matter was set down for trial on 23 October 2003, but, on that day, he entered a plea of guilty.

2 The facts giving rise to the offence were to a degree contested. Both the complainant and the appellant were driving in a northerly direction along Albany Highway in Gosnells. Whether, as the prosecution asserted, the appellant was tailgating the complainant, or whether, as the appellant asserted, the complainant was braking and accelerating and stopping him from going passed, matters little.

3 At all events, the vehicles came to a stop at the intersection of Albany Highway and Dorothy Street. The appellant then got out of his vehicle, went over to the complainant, who was still sitting in his vehicle, and hit him with a clenched fist to his head. The complainant attempted to get out of his vehicle, but the appellant continued to strike him. Finally, the complainant got out of his vehicle and a fight ensued.

4 There is no challenge to the fact that the complainant suffered a split lip, chipped teeth, a black eye and a swollen jaw. I think it is immaterial when the complainant suffered the injuries as the fight occurred due to the appellant's initial assault.

5 The appellant was at the time of sentence 26 years of age. He had a record which included a number of violent offences. He had struggled with a drug addiction, but at the time of sentence had a naltrexone implant and was receiving counselling. He was on parole at the time of the commission of the offence, although not at the time of sentence. The Magistrate described the offence this way:

"This is a violent offence. It is an offence which, I would have to say, requires significant public and personal deterrence."

6 He then went on to deal with his experience on the bench of offences of a similar nature which he described as "road rage" and said:

"… he who gets out of his car in a situation of confrontation to confront the other person does so at his peril, in my view. There are plenty of - - if the behaviour is unacceptable in other drivers there's plenty of ways about expressing one's disappointment, and that is through the correct channels, no [sic] through inflicting violence on another."

(Page 4)

7 He also said:

"In my view the behaviour was certainly unprovoked, irrespective - - he didn't get out of the car. He didn't try and front you in that sense. Whatever happened on the road, in my view, were matters that could well have been either ignored or dealt with in a more appropriate way. It was an unprovoked, in my view, violent attack."

8 The Magistrate noted there was no mitigation in the events or in the appellant's antecedents, expressing the view:

"You have a violent history over an extended period of time. As recently as March of this year it appears that you appeared before this court and received a substantial fine of $1500 for an assault."

9 The Magistrate noted that the fine for the assault post-dated the present offence but that it reflected an ongoing inability on the part of the appellant to control his behaviour and in that sense, of course, it was part of the appellant's antecedents.

10 The Magistrate took account of the plea of guilty by saying there was some mitigation and some credit to the appellant entering a plea, albeit at a late stage. The Magistrate said he would have imposed a sentence of 2 years' imprisonment, but reduced it by 6 months for the plea of guilty and 6 months for the absence of remissions, by which I understand he meant that under the previous sentencing regime he would have imposed a sentence of 18 months' imprisonment. As it turned out, he imposed a sentence of 12 months' imprisonment under the Sentencing Act as amended in 2003. He gave counsel an opportunity to comment on the issue of parole.

11 The Magistrate noted that the grant of parole was a balancing act and accepted that even given the considerations of the Sentencing Act s 89 there is always a bias towards granting parole. He concluded that the matter was a serious offence, the appellant had a significant history of violent offending, and that at the time he was on parole. The considerations were such that those factors outweighed the right to rehabilitation and he declined to make the appellant eligible for parole.

12 On 23 December 2003, EM Heenan J granted leave to appeal on the following grounds:

(Page 5)

"1. the sentence of 12 months imprisonment was manifestly excessive having regard to

(i) the plea of guilty

(ii) the fact that there was some provocation by the complainant

(iii) the relatively minor nature of the injuries suffered by the complainant

(iv) the fact that imposing a sentence of imprisonment led to the Applicant being liable to serve up to two years for breach of parole days.


2. The learned Magistrate erred in refusing to make the Applicant eligible for parole having regard to the fact that the offence occurred within six months of the completion of the Applicant's parole period during which time he had not offended and had otherwise complied with the period of parole supervision."

13 Today I have heard argument from both Mr Young on behalf of the appellant and Mr Malhotra on behalf of the State, each counsel having previously submitted comprehensive outlines of argument which I read over the weekend.

14 The Magistrate expressly took the plea of guilty into account and in my view gave it appropriate weight. It could in no way be described as an early plea of guilty occurring as it did on the door of the Court. There was some delay in charging the appellant but then a further delay until he pleaded guilty.

15 It was open for the Magistrate to find there was no effective provocation for what had occurred. The relatively minor state of the injuries suffered by the complainant might be a matter of interpretation.

16 However, the Magistrate noted that what he characterised as "road rage", in his experience as a Magistrate, had become a regular occurrence which required significant public and personal deterrence.

17 A Magistrate is well placed to consider whether the penalties for certain types of offences require firming up from time to time in order to provide for general deterrence. Although the expression "road rage" is of recent origin, it is an apt description of a type of behaviour which may

(Page 6)

include acts of a criminal nature. I do not consider the Magistrate misdirected himself by use of the term. He clearly identified the relevant factors of the assault and sentenced only on that basis.

18 The Magistrate also considered other forms of sentence disposition. He considered that fines and supervision would not reflect the seriousness of the action. He said:

"Given your history a suspension of the term, in my view, doesn't appear to be an effective means of altering your behaviour or rehabilitate you and doesn't reflect the seriousness of events."

Each of those judgments was open.

19 As to ground 1(iv), the sentence imposed by the Magistrate will be served concurrently with the parole days - see Hayden v The Queen [2003] WASCA 210. The present case is somewhat unusual in that the appellant had completed parole before conviction. In fact he had completed about 18 months without offending prior to this offence, but the fact remains that he had not completed the 2 years required to get a clean slate.

20 It has not been demonstrated that a sentence of 12 months' imprisonment for this act, having regard especially to matters of general and particular deterrence, is beyond the bounds of a sound sentencing discretion. I would not uphold the appeal on ground 1.

21 I turn now to the question of parole. The Sentencing Act, s 89(1), provides:

"A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order."

22 By s 89(4):

"A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following factors -

(a) the offence is serious;

(b) the offender has a significant criminal record;

(Page 7)

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant."

23 It is acknowledged by the appellant's counsel that the appellant qualified in respect of two, possibly three of those four provisions. It may be that the changes to s 89 do alter the bias towards parole eligibility in that arguments can be directed each way. I note the discretion in s 89(4) is a discretion not to make a parole eligibility order.

24 I specifically refrain from deciding that issue today. The reason I do that is because of the way in which the Magistrate dealt with the matter is that he accepted that despite s 89, there is always a bias towards granting parole. Because he accepted that and because that is a view more favourable to the appellant than the one propounded by the respondent, I will deal with this appeal on the basis that there is nevertheless a bias towards parole although s 89(4) may inform the exercise of the discretion. However, I am expressly not deciding the construction of s 89 which can wait for another day.

25 Accepting that the appellant fell within at least two of the four provisions, the discretion under s 89(4) not to order parole was well and truly enlivened.

26 The Magistrate specifically sought submissions about the issue of parole. He had previously listened to submissions in which Mr Young had pointed to matters of mitigation. The Magistrate said that there was no mitigation in the antecedents. That may be overstating it a little. The appellant is 26 years old. He no longer has youth entirely on his side. He does have a daughter and a somewhat younger son. He has been in employment and has obviously made considerable efforts to deal with his drug addiction, to the extent of obtaining a naltrexone implant and also going to counselling. These were matters that were before the Magistrate. The Magistrate was clearly aware that he had to exercise his discretion and described it as "a balancing act". I think in that sense he was referring to all the factors relevant to the grant of parole in terms where s 89 opened up the issue of the discretion, but did not foreclose further consideration. In the end what the Magistrate said was:

"You have a significant history of violent offending and at the time you were on parole. In my view the considerations are such that it has now come to the point where the issue of parole - - those factors outweigh the right to rehabilitation."

(Page 8)

so he made no parole eligibility order.

27 Mr Young has argued on behalf of the appellant that the discretion was exercised wrongly in that the Magistrate gave certain factors too much weight and other factors too little weight. The exercise of discretion is often difficult and a Court will rarely intervene on the basis that a judicial officer gave certain factors particular weight because that is the nature of the discretionary exercise. The question of weight is very much one for the judicial officer concerned.

28 Bearing in mind at all times that the appellant must show that the discretion miscarried, I have not been persuaded in this case that the discretion miscarried. It seems to me that s 89(4) having been triggered, it was open for the Magistrate to exercise the discretion to refuse parole. I am unable to determine any error in the Magistrate's reasoning which would cause me to revisit the exercise of the discretion. Therefore for those reasons the appeal will be dismissed.