Hill v Tomkin
[2021] WASC 54
•3 MARCH 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HILL -v- TOMKIN [2021] WASC 54
CORAM: TOTTLE J
HEARD: 15 FEBRUARY 2021
DELIVERED : 15 FEBRUARY 2021
PUBLISHED : 3 MARCH 2021
FILE NO/S: SJA 1077 of 2020
BETWEEN: MICHAEL NOEL HILL
Appellant
AND
HELEN TOMKIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S MALLEY
File Number : PE 60744 of 2019
Catchwords:
Criminal law - Appeal against sentence - Manifest excess - Whether error as to type and length of sentence - Where sentence unreasonable or plainly unjust - Where sentence of immediate imprisonment not open on proper exercise of sentencing discretion - Appellant resentenced
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal be granted on grounds 1, 2 and 3
The appeal be allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Ms M Ajduk |
| Respondent | : | Mr B Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bell v Carrier [2018] WASC 169
Bolton v The State of Western Australia [2012] WASCA 2
Chidoti v Terrey [2018] WASC 332
Colbung v The State of Western Australia [2013] WASCA 257
Evans v The State of Western Australia [2019] WASCA 73
Johnson v Vander Sanden [2021] WASCA 27
Kennedy v The State of Western Australia [2017] WASC 156
Narrier v The State of Western Australia [2011] WASCA 193
Riddoch v Chiera [2020] WASC 114
Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154
Sallie v Cursiter [2018] WASC 318
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stevenson v Mackay [2020] WASC 437
SYL v The State of Western Australia [2021] WASCA 16
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Maee [2018] WASCA 53
Wiltshire v Mafi [2010] WASCA 111
TOTTLE J:
Introduction
On 15 July 2020 the appellant pleaded guilty to an offence of doing an act causing bodily harm contrary to s 304(1)(a) of the Criminal Code 1913 (WA). The appellant's plea was entered on the morning of the day fixed for the trial. On 9 September 2020 the appellant was sentenced to 10 months' immediate imprisonment with eligibility for parole. He appealed against that sentence.
The appellant relied on four grounds of appeal which, as amended by leave at the hearing, were as follows:
(1)The learned sentencing Magistrate erred in his calculation of the discount afforded to the appellant for his plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
(2)The learned sentencing Magistrate erred in law in failing to take into account any factor in mitigation other than the appellant's guilty plea.
(3)The learned sentencing Magistrate erred in imposing a sentence of imprisonment when in all of the circumstances a sentence of last resort was not warranted.
(4)The learned sentencing Magistrate erred in imposing a sentence of immediate imprisonment, when in all of the circumstances it was not open to his Honour to be satisfied that it was inappropriate to suspend the sentence imposed.
The respondent conceded that the first and fourth grounds of appeal were made out and that the appeal should be allowed and the appellant resentenced.
On 26 October 2020 the appellant was granted bail pending the hearing of the appeal. He served 48 days of the custodial sentence.
At the conclusion of the hearing I granted leave to appeal in relation to grounds 1 and 4, allowed the appeal and resentenced the appellant by making a community based order. I gave brief oral reasons and said I would publish written reasons later that would deal also with ground 3. These are those reasons.
The facts and the plea in mitigation
The appellant accepted the following statement of the facts of the offending as read by the prosecutor to the magistrate:
The accused and the victim were in a family domestic relationship. They have a two year old son together. They lived separately for about seven months, with the victim still residing in the family home with the two year old son and her two other children, who are aged 10 and 12.
Around 8.20 pm on 25 December '19, the accused has driven his vehicle into the driveway of this address in Roleystone. This is the family home of the victim and the children, as spoken about above. The victim saw the vehicle drive into the driveway and informed her mother-in-law, who was also present inside, being Christmas Day, to call the police, as she believed it to be the accused.
The accused has walked to the side door within the carport. The door consists of a large glass window pane. The accused was carrying his son's Christmas present in a bag in his left hand. He has tapped on the door to attract the attention of the victim. He has tried the door handle but found the door to be locked.
The accused and the victim have had a verbal argument. They've conversed with one another through the glass window pane. The accused has then punched the glass window pane with his right fist, causing it to break. The glass from the window struck the victim on her face, causing a bleeding wound to her forehead that required six stitches, a wound under the corner of her left eye requiring a Sterostrip, and a small hole above her left eyelid requiring further specialist medical attention.
CCTV footage was captured of the accused putting his arm through the open window and unsuccessfully attempting to open the door from the inside after this happened. The accused shouted through the open widow and proceeded to walk away from the door, towards his car. He then walked back towards the door and threw his son's Christmas present through the open window, shouting words to the effect of, 'There's his fucking presents.' The accused has then returned to his vehicle and driven away.
The appellant's counsel then made submissions in mitigation to the following effect:
(1)The appellant had pleaded guilty to the charge.
(2)The appellant had attempted to visit his son at the complainant's property the morning of 25 December 2019, but no‑one had been home, and so the appellant had spent Christmas Day alone.
(3)The appellant had recently ceased his medication and was having a difficult time being away from his son.
(4)The house was built in about 1986 property and the window was not fitted with safety glass.
(5)The appellant had accepted full responsibility for the split‑second loss of control.
(6)The appellant had a good employment history and was, at the time of sentencing, employed as a prison officer.
(7)The appellant's continued employment as a prison officer was dependant on the type of sentence the appellant received. I infer from the submissions made by the appellant's counsel that the appellant was a valued member of the prison staff and there was a prospect the appellant's employment would not be terminated if the penalty imposed was a fine.
(8)The appellant supported the complainant and his son by making child support payments and mortgage payments to the house jointly owned between the appellant and the complainant. The amount owing under the mortgage at the time of sentencing was over $400,000.
(9)The appellant suffered from ADHD and depression, but he was engaging with a psychiatrist and seemed to be actively addressing those issues.
(10)The appellant did have a criminal record but aside from a spent conviction for breach of a police order in 2018, the remaining matters dealt with were traffic offences. Importantly, the appellant did not have a prior record of violent offending.
(11)The appellant had been deemed to be at a low risk of re‑offending.
A pre-sentence report and a psychological report were provided to the magistrate. I will refer to the contents of these reports in more detail later in these reasons.
The magistrate's sentencing remarks were as follows:
The starting point for this is that it is an extremely - I consider it to be a serious offence - resulted in injuries to the face of the female, for a start, which - given the location, which is fairly obvious, there are obviously implications of that.
There's simply no mitigation in the act. I accept that you're now remorseful. I accept that you have a limited record and that you have pleaded guilty, albeit at a very late stage. I'm mindful of the mental health issues and I take into account what the psychologist, Ms Wendy Wager, has said on your behalf, effectively, but what this was a reckless act which was always fraught with danger, and that's exactly what happened.
You can't hit a window with force - and it would have to be, in my view, significant force to cause that sort of result - without expecting something like that to happen. I take the view that some acts are so serious that only a term of imprisonment is appropriate, simply because it was an act, as I say, done - albeit on the spur of the moment - which was likely to cause harm in all the circumstances, where the victim is standing on the other side of the pane of glass.
With that in mind, in my view, a term of imprisonment is appropriate. In that regard, a term of 12 months is appropriate, given your history. Albeit a late plea, I've discounted 25 per cent by 9AA, bringing it down to 10 months. I take the view the penalty should be viewed as akin to a glassing, given the obvious risks associated with the acts. The force applied would have had to have been significant, and the consequences should have been obvious, other than, perhaps, to a person who was enraged. The victim has suffered, as I say, significant facial cuts and bruising.
Given your occupation, I have to say, you should have been more aware of consequences of such behaviour, and I take the view that all relevant - all relevant factors, when considered - only an immediate term sends a personal and general deterrent message, particularly given the clear issues relating to domestic violence within the community. I order that you serve the 10 months immediately and you be eligible for parole.
Extension of time to commence the appeal
The appeal notice was lodged three days out of time. The delay has been explained and I will grant an extension of time for bringing the appeal.
Leave to appeal
The appellant requires leave to appeal because this is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA).[1] The court must not grant leave to appeal unless it is satisfied that the ground has a reasonable prospect of success.[2] In order for the court to be satisfied that this threshold has been met, the ground of appeal must be shown to have a rational and logical prospect of succeeding, meaning, a real prospect of success.[3]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
Principles applicable to sentencing appeals
The principles applicable to sentencing appeals were recently restated by Vaughan JA in SYL v The State of Western Australia,[4] as follows:
1.Sentencing is a discretionary exercise. That discretion is of fundamental importance. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. An appellate court can intervene only if the appellant demonstrates either an express or implied material error.
2.Express error involves acting on a wrong principle; for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. A ground of appeal which alleges that a sentence is manifestly excessive or manifestly inadequate asserts an implied error.
3.In determining whether a sentence for an individual offence is manifestly excessive or manifestly inadequate, the sentence should be viewed in light of: (a) the maximum penalty for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of offences of that type; and (d) the offender's personal circumstances.
4.The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion in a particular case. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
5.When an appellate court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not, of itself, fix the upper or lower limit of the range.
[4] SYL v The State of Western Australia [2021] WASCA 16 [65].
The fundamental importance of the discretion conferred on the sentencing court and the requirement of appellate restraint has been expressed in terms of a requirement that the appellant demonstrate that the sentence imposed is unreasonable or plainly unjust.[5]
[5] The State of Western Australia v Delaney [2020] WASCA 93 [23](2).
Grounds 1 and 2: express error by the sentencing magistrate
Section 9AA of the Sentencing Act 1995 (WA) relevantly provides:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
'Head sentence' means the sentence that a court would have imposed for the offence if the offender had been found guilty after a plea of not guilty; and there were no mitigating factors.
In the sentencing remarks the magistrate stated that:
[A] term of imprisonment is appropriate. In that regard, a term of 12 months is appropriate, given your history. Albeit a late plea, I've discounted 25 per cent by 9AA, bringing it down to 10 months.
While the magistrate stated that he would apply a discount of 25% the final sentence imposed was 10 months' imprisonment (a discount of 16.66%).
It was not open to the magistrate to make a reduction of 25% because the appellant did not enter a plea of guilty at the first reasonable opportunity.[6] Rather the magistrate recorded the appellant pleaded guilty 'at a very late stage'.[7] The reduction of 16.66%, which the appellant ultimately received, was in the circumstances a generous reduction.
[6] ts 8; see Sentencing Act 1995 (WA) s 9AA(4)(b).
[7] ts 8.
If ground 1 was the only ground of appeal notwithstanding that the magistrate made an express and material error, it would be open to this court to dismiss the appeal on the grounds that the error did not amount to a substantial miscarriage of justice.[8] Relevantly, this discretion has been found to apply to sentencing appeals.[9]
[8] Criminal Appeals Act 2004 (WA), s 14(2).
[9] Bell v Carrier [2018] WASC 169 [22] (Corboy J).
Thus while the first ground has been made out, the success of the appeal depends upon the appellant succeeding on a further ground of appeal.
Under the second ground of appeal the appellant contends that the sentencing magistrate expressly erred by failing to take into account mitigating factors other than the appellant's guilty plea when calculating the reduction to the sentence imposed.
Mitigating factors must be taken into account when determining the seriousness of an offence.[10] The seriousness of the offence then goes directly to the sentence that is imposed.[11]
[10] Sentencing Act 1995 (WA) s 6(2)(d).
[11] Sentencing Act 1995 (WA) s 6(1).
Within his sentencing remarks the magistrate made reference to mitigating factors in the following terms:
There's simply no mitigation in the act. I accept that you're now remorseful. I accept that you have a limited record and that you have pleaded guilty, albeit at a very late stage. I'm mindful of the mental health issues and I take into account what the psychologist, Ms Wendy Wager, has said on your behalf, effectively, but what this was a reckless act which was always fraught with danger and that's exactly what happened. (emphasis added)
I construe these remarks as conveying that the magistrate considered that there was no mitigation available to the appellant in the circumstances of the offending but that he gave consideration to the other matters raised in mitigation but was not persuaded that they justified a reduction in the sentence.
Ground 2 of the appeal has not been made out.
Ground 3 and 4: imprisonment and manifestly excessive
It is convenient to deal with these two grounds together.
The maximum penalty for an act causing bodily harm
The maximum penalty that can be imposed for an act causing bodily harm is 7 years' imprisonment.[12]
[12] Criminal Code 1913 (WA) s 304(1).
On summary conviction the maximum penalty is 3 years' imprisonment and a fine of $36,000. The existence of this jurisdictional limit on the sentence that can be imposed under s 304(1) of the Criminal Code does not have the effect of reducing the maximum penalty.[13]
The seriousness of the offence
[13] Wiltshire v Mafi [2010] WASCA 111 [26].
The factors that aggravate the seriousness of the offending are:
(1)The seriousness of the facial injuries suffered by the complainant, including the potential for more significant harm due to the proximity to the complainant's eye.
(2)The offence was committed within a domestic setting. The appellant and the complainant had been in a domestic relationship but were separated. The offence was committed in the presence of the appellant's young son, the appellant's mother and grandmother.
(3)The appellant's act, though of an isolated and impulsive nature, was undoubtedly aggressive.
The factors that mitigate the seriousness of the offending are:
(1)The appellant did not use a weapon or implement in the course of his actions.
(2)The appellant did not intend to cause the injuries suffered by the complainant.
(3)The act was impulsive and not premeditated.
(4)The appellant did not foresee the consequences of his actions. Further, objectively, it was at least as likely that the appellant would have suffered injury from punching the glass as it was that the punch would have resulted in injury to the complainant.
(5)The appellant's act was not accompanied by threats of violence.
(6)The act was an isolated. It was not part of a sustained attack or course of threatening behaviour.
The standards of sentencing customarily imposed
The wide variety of circumstances within which s 304(1) offences are committed is such that customary sentencing standards have not been established. Both the appellant and the respondent were agreed that there are no comparable cases to guide the exercise of the sentencing discretion. That said, some guidance can be obtained from the penalties imposed in respect of s 304 offences and the penalties imposed in respect of the offence of assault occasioning bodily harm. The respondent submitted that the assault occasioning bodily harm cases were relevant because in the context of domestic violence, assault occasioning bodily harm and doing an act causing bodily harm have the same statutory penalty.[14]
[14] Criminal Code 1913 (WA) s 304(1) and s 317(1).
In Evans v The State of Western Australia,[15] six cases were identified which dealt with s 304(1) offences under the Criminal Code.[16] Each of the cases dealt with situations in which a vehicle, explosive device or firearm was used, and the sentencing for the contravention of s 304(1) was in the context of a larger total effective sentence.
[15] Evans v The State of Western Australia [2019] WASCA 73 [84] - [90].
[16] The State of Western Australia v Maee [2018] WASCA 53; Narrier v The State of Western Australia [2011] WASCA 193; Bolton v The State of Western Australia [2012] WASCA 2; Colbung v The State of Western Australia [2013] WASCA 257; Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154.
In Evans v The State of Western Australia, the appellant had intentionally attacked the complainant with a piece of high-pressure hose that he had folded in half. The appellant was also carrying a Taser at the time of the attack. The attack was premeditated. The appellant was sentenced to a term of imprisonment of 3 years. An appeal against sentence was allowed and the appellant was resentenced to a term of 18 months' imprisonment, conditionally suspended for 12 months with a programme requirement and a supervision requirement.
In Stevenson v Mackay,[17] the appellant deliberately drove a vehicle in a manner that put the complainant in significant danger. A sentence of 12 months of imprisonment was upheld on appeal to a single judge of this court.[18]
[17] Stevenson v Mackay [2020] WASC 437.
[18] Stevenson v Mackay [2020] WASC 437.
In Kennedy v The State of Western Australia,[19] the appellant was convicted on his pleas of guilty to two offences contrary to s 304(1)(b) of the Criminal Code. The offending involved the appellant assaulting the victim by kicking him while he was on the ground. The appellant was with a group of friends who were all assaulting the victim. At one point the victim managed to get up and run into a nearby café. The group, including the appellant, followed the victim into café where they continued to assault him. Once again the appellant kicked and punched the victim while he was on the ground. The appellant's personal circumstances were that he was 22 at the time of the offence, he had no criminal record, a supportive family, actively participated in his local church and had good prospects of rehabilitation. The offences were extremely out of character. As a result of these favourable personal circumstances Hall J concluded that the sentence of 12 months' imprisonment should be suspended.
[19] Kennedy v The State of Western Australia [2017] WASC 156.
In Riddoch v Chiera,[20] the appellant assaulted the victim while they were in the car with their three-year-old daughter and the victim's eight‑year‑old son. The assault involved the appellant repeatedly punching the victim, hitting the victim's head against the car window and choking the victim. The sentence of 14 months' immediate imprisonment was not disturbed on appeal.
[20] Riddoch v Chiera [2020] WASC 114.
In Chidoti v Terrey,[21] the appellant was also in a domestic relationship with the victim. The appellant assaulted the victim in their home. The assault involved the appellant slapping and kicking the victim, as well as forcing the victim's head into the corner of the door, causing severe injuries. The assault was described as 'protracted and persistent'. The appellant had a prior criminal record for an assault against the same victim, also in a domestic situation. The sentence of 9 months' immediate imprisonment with eligibility for parole was not disturbed on appeal.
[21] Chidoti v Terrey [2018] WASC 332.
In Sallie v Cursiter,[22] the appellant assaulted the victim on two separate occasions while they were in a domestic relationship. On the first occasion the appellant struck the victim across the face using the back of his left arm. This caused the victims upper lip to bleed. The appellant also grabbed at the victim causing grazing to her chest. On the second occasion the appellant pulled the victim's hair, pushed the victim, put his hand across the victim's mouth to stop her from calling out for help and kneeled on the victim's legs. As a result the victim suffered a scratch to her left cheek and a small cut inside her lip. On appeal the sentence was reduced to 4 months of immediate imprisonment for the first offence and 3 months' immediate imprisonment for the second offence. These sentences were to be served cumulatively.
The appellant's personal circumstances
[22] Sallie v Cursiter [2018] WASC 318.
The appellant is a 35 year old man who was 33 years old at the time of the offence.
The appellant has only a minor criminal record, with no other instances of violent offending. There was a breach of a police order in March 2018 when the appellant returned to the complainant's house to pick up some work boots. There was no violence involved, the appellant left immediately and he was given the benefit of a spent conviction.
The appellant has a good work history including the employment as a prison officer, an occupation requiring a significant level of responsibility and good interpersonal skills.
The pre-sentence report identified the following factors as contributing to the offending: untreated mental health concerns arising from diagnoses of Attention Deficit Disorder and depression, sudden cessation of pharmacological treatment, poor emotional regulation and resilience skills, relationship failure and jealousy and self-esteem issues. The report recorded that domestic violence counselling and psychological counselling were considered his prime treatment needs. The pre-sentence report recorded that, as a result of the offending, the appellant had become estranged from his family. The report spoke also of the appellant's profound remorse.
The psychological report contained the following observations on the appellant's offending and psychological needs.
What is apparent, is that antecedents for the offence appear to comprise significant stress in the relationship over time, his build-up of frustration and anger with the victim, and his engagement in self‑defeating behaviour which exacerbated his distress and frustration. It is noted that part of that self-defeating behaviour was to cease antidepressant medication, which likely resulted in a worsened emotional state and return of his depressive symptoms.
…
Mr Hill has no prior documented incidents of aggression or violence and he reported a stable and safe upbringing, without trauma. His diagnosis of an attentional disorder and depression, combined with inconsistent compliance with pharmacological treatment appear relevant to the current offence. He seemed to lack awareness and appreciation of the impact of accumulated stress, distress, and frustration upon his capacity for sound decision making. Consequently, accumulated poor choices were antecedent to his aggressive action. Risk factors which may impact his propensity to offend in the future are identified as the lack of personal support, specifically from his family, and the difficulty he has demonstrated in managing his responses to accumulated stressors.
The motivators for Mr Hill having committed the current offence appear to relate to his need for emotional expression and tension release at a time of high arousal. ·Retribution and/or control are also possible motivators, however the lack of information regarding the relationship makes those tentative at best. Disinhibitors which facilitated his actions are his negative self-concept, feelings of alienation, lack of insight and diminished empathy. Relevant destabilisers are identified as his impaired reasoning at the time, cessation of medication, and probable impulsive thoughts related to injustice and revenge.
Overall, Mr Hill is assessed as low risk of likelihood of reoffending in a violent manner in the future. He has demonstrated pro-social living skills, which seemingly let him down at a time of significantly increased stress and distress. The lack of aggressive or violent ideation evident in the information for this assessment suggest he will find the current process a deterrent for future impulsive choices
The statutory sentencing principles
The sentence imposed on an offender must be commensurate with the seriousness of the offence.[23] The seriousness of the offence is determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of the victim of the offence, any aggravating factors and any mitigating factors.[24]
[23] Sentencing Act 1995 (WA) s 6(1).
[24] Sentencing Act 1995 (WA) s 6(2).
A sentence of imprisonment must not be imposed unless 'the seriousness of the offence is such that only imprisonment can be justified'.[25]
[25] Sentencing Act 1995 (WA) s 6(4)(a).
Section 39 of the Sentencing Act 1995 (WA) lists the sentencing options available to the court in ascending order of seriousness. The most serious option is immediate imprisonment. Under s 39(3) a court must not impose any sentencing option, unless it is positively satisfied that it is not appropriate to use any of the preceding options.
Disposition
As has been outlined, the injuries sustained by the complainant were severe. The fact that the injuries were caused by glass to the complainant's face was clearly a significant consideration for the sentencing magistrate. The sentencing magistrate drew a comparison between the appellant's offending and a glassing. With respect, I consider this comparison bespeaks error. A glassing involves an intentional breaking of a glass into a person's face with the obvious potential for very severe injury. The appellant's act involved the appellant breaking a window in a momentary loss of control with no intention of causing harm to the complainant.
While there are no directly comparable cases, it is possible to draw from the cases that sentences in the range of 9 to 12 months appears to be appropriate in a context of a prolonged and intentional attack on a domestic partner, or where a weapon, vehicle or other implement has been used.
In my view, when regard is had to the particular circumstances of the offending and to the appellant's personal circumstances, the imposition of a term of imprisonment to be served immediately was manifestly excessive. I have come to that conclusion having regard to the sentences imposed in the cases to which I have referred above and the factors that mitigated the seriousness of the offence as I have enumerated them earlier in these reasons. I have also taken into account the appellant's profound remorse, the absence of any history of violence or violent offending and his positive antecedents. I grant leave to appeal in respect of ground 4 and would allow the appeal on that ground.
I would also grant leave to appeal on ground 3. In my view, it was not open to the magistrate to impose the sentence of last resort, that is, a sentence of imprisonment. In arriving at this conclusion I have taken into account that it was not open to the magistrate to impose a term of imprisonment of 6 months or less,[26] and this prohibition applies to terms of imprisonment that are suspended.[27] In my view, the imposition of a term of imprisonment greater than 6 months would not have been appropriate. It would have been unreasonable or plainly unjust.[28] It follows that a suspended term of imprisonment of the same length could not be imposed. On this basis I would grant leave to appeal on ground 3 and allow the appeal on that ground as well.
[26] Sentencing Act 1995 (WA) s 86.
[27] Sentencing Act 1995 (WA) s 76(2); Johnson v Vander Sanden [2021] WASCA 27 [72] - [97].
[28] The State of Western Australia v Delaney [2020] WASCA 93 [23](2).
Conclusion
For the reasons I have given the appeal should be allowed and the appellant re-sentenced. In doing so I take into account the fact that the appellant has served approximately 7 weeks of the custodial sentence imposed by the magistrate.
The appellant's employment has been terminated. The appellant has made enquiries and is hopeful that he may be able to secure further employment. The appellant's financial circumstances are such that he has been unable to afford the psychological counselling that has been recommended.
The appellant is estranged from the complainant and also from his family. He has not seen his son since the day of the offence and this is a cause of emotional distress.
The respondent accepts that it would be open to this court to impose an order, or community based order or an intensive supervision order, in each case with programme and supervision requirements.
Having regard to the time spent by the appellant in custody, a community based order with supervision and programme requirements is the appropriate sentencing disposition. Such an order should assist the appellant in obtaining the assistance he requires to resume his life as a law abiding citizen with the capacity to make a positive contribution to society and to those around him.
Orders
For these reasons I would:
(1)grant leave to appeal in respect of grounds 1, 3 and 4;
(2)allow the appeal;
(3)set aside the sentence of 10 months' immediate imprisonment imposed by the magistrate; and
(4)re-sentence the appellant to a community based order with a supervision requirement and a programme requirement.
As agreed between the parties there will be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
3 MARCH 2021
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