Holden v The State of Western Australia
[2009] WASCA 50
•27 FEBRUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOLDEN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 50
CORAM: OWEN JA
WHEELER JA
MILLER JA
HEARD: 12 FEBRUARY 2009
DELIVERED : 27 FEBRUARY 2009
FILE NO/S: CACR 98 of 2008
BETWEEN: KEVIN JOHN HOLDEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :NISBET DCJ
File No :IND 52 of 2008
Catchwords:
Criminal law and procedure - Appeal against sentence - Error of fact by sentencing judge - Error resulted in a manifestly excessive sentence - Turns on own facts
Legislation:
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), sch 1, cl 3A(2) and (3)
Result:
Appeal allowed
Appellant resentenced to 18 months' imprisonment
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr P D Yovich
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collins v The State of Western Australia [2007] WASCA 108
Damasco v The Queen [2003] WASCA 101
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
HAS v The State of Western Australia [2005] WASCA 29
Hogue v The State of Western Australia [2005] WASCA 102
Kilner v The Queen [1999] WASCA 189
Kitts v The Queen [2000] WASCA 113
Mourish v The State of Western Australia [2006] WASCA 257
R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Anderson [2004] WASCA 157
The State of Western Australia v Camilleri [2008] WASCA 217
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
OWEN & MILLER JJA: This is an application for leave to appeal against a sentence of imprisonment imposed on the appellant in the District Court for the offence of unlawful assault occasioning bodily harm. The question of leave was referred to this Court for determination at the hearing of the appeal.
Background
On the evening of 20 July 2007 the appellant, a co‑offender (Crook) and a Ms Hall (who was the girlfriend of the complainant Mahanga) were drinking in the appellant's unit.
Mahanga had been consuming alcohol since noon on that day and had arrived at the appellant’s unit in a very intoxicated state. Mahanga spoke and drank with the appellant and Hall at the dining table inside the unit. At various times throughout the evening Mahanga became provocative and antagonistic towards Hall. Mahanga left the unit and returned a short time later with a small knife. He did not threaten anybody with it but made it known that he had it in his possession. He did this in order to attempt to get Hall to return home. Hall took the knife from him and placed it out of his reach.
The appellant then removed Mahanga from the unit by dragging him outside to the front area. Crook followed the two men outside. Crook grabbed Mahanga and forced him to the ground with a karate chop to the neck or shoulders. Crook also kneed Mahanga in the chest.
The appellant walked back into the unit and took a set of wooden nunchuckus from the lounge room wall and returned outside. He swung the nunchuckus at Mahanga who was hunched over and kneeling on the ground and struck him once but not at full force to the body.
The appellant and Crook both went back inside where they continued drinking with Hall. Some time later Mahanga went back to his unit and went to sleep. He woke the next morning with stomach pains and later that afternoon called an ambulance. He was taken to Rockingham District Hospital and then transferred to Fremantle Hospital for emergency surgery. He was treated for a perforated bowel. He also suffered bruising and tenderness on his lower back with fractures to two of his vertebrae. It seems that Mahanga thought he had suffered fractures to some ribs.
On 2 August 2007 the appellant and Crook were arrested. They were initially charged on indictment with unlawfully doing grievous bodily harm to Mahanga. They were arraigned on 17 June 2008 at which time they pleaded not guilty to the grievous bodily harm charge but guilty to the lesser charge of unlawful assault occasioning bodily harm. The prosecution accepted these pleas in full satisfaction of the indictment.
On 18 June 2008 the sentencing judge heard an oral pre-sentence report from an officer of the Department of Corrective Services, Ms Chadwick. Counsel for the appellant first asked that the State outline the facts before the pre‑sentence report was delivered. The sentencing judge rejected the request. At the conclusion of the pre‑sentence report counsel for the appellant sought to 'ask a couple of questions' of Chadwick. This application, too, was rejected. His Honour then entertained submissions on behalf of the State and each of the accused. Counsel for the appellant submitted that any term of imprisonment that might be imposed should be suspended.
On 19 June 2008 his Honour pronounced sentence. The appellant and Crook were each sentenced to imprisonment for 2 years to take effect immediately. They were made eligible for parole. In the case of the appellant the sentence was backdated to 16 June 2008. This means that the appellant will become eligible for parole on or about 16 June 2009.
The sentencing remarks
The sentencing judge went carefully through the facts in a way that does not excite controversy. He then referred to the application to cross-examine Chadwick and said:
Community corrections officers are not cross-examined on written pre‑sentence reports which are, generally speaking, only made available at or shortly before sentencing hearings. And I saw and continue to see no difference in the fact that the pre‑sentence report in each of your cases were delivered orally to the Court.
His Honour then moved to address a submission that had been made on behalf of the appellant that he should be sentenced on the basis that the perforated bowel sustained by the complainant had no, or no provable nexus, with the assault and that there was no evidence of Mahanga having sustained fractures to two of his lower vertebrae. His Honour noted that the argument of lack of a causal connection between the assault and the perforated bowel was the reason why the appellant had maintained a plea of not guilty to the grievous bodily harm charge. His Honour reviewed two medical reports about Mahanga's injuries and the onset of peritonitis. He expressed his conclusion in these terms:
In the circumstances, therefore, I have no hesitation in finding that the perforated bowel was occasioned by the assault.
This finding is the starting point of my consideration of the sentencing options available to me in respect of each of you. In each case, apart from the seriousness of the bodily harm inflicted, there are other facts which aggravate the seriousness of the offences in my opinion; namely, firstly, that you were in company. … Secondly, [Mahanga] was hopelessly drunk and therefore even more helpless against two assailants. Thirdly, the injuries have left [Mahanga] vulnerable to further or other health problems. [emphasis added]
The sentencing judge went on to consider mitigating and personal factors, again in a way that is not controversial. He then characterised the offence as 'in the upper range of seriousness for offences of this type', again citing the perforated bowel as a factor in reaching that conclusion. In pronouncing sentence, his Honour used 4 years as a starting point before reducing it by one third to reflect the transitional provisions and then by a further 25% for the guilty plea. This explains the end result of 2 years. He said that he regarded the crimes as too serious to suspend the sentence.
Grounds of appeal
In the appeal papers there are two grounds of appeal. First, the appellant contends that the sentencing discretion miscarried when his Honour decided not to suspend the sentence 'such that the sentence imposed was manifestly excessive when viewed against comparable cases and in all the circumstances'. This ground is supported by particulars.
In ground 2 the appellant contends that the sentencing judge's discretion miscarried when he refused to allow the appellant's counsel to cross-examine the presenter of the pre‑sentence report. It is said that this resulted in a sentencing process that was unfair and in the imposition of a sentence that was manifestly excessive. The particulars advanced in support of the ground are that aggravating factors were unable to be challenged and mitigating factors could not be clarified. We will come back to grounds 1 and 2.
When this matter came on for hearing a concession was made on behalf of the State; namely that the sentencing judge had made errors of fact that were material to the sentence. Counsel for the State said:
The respondent will concede that there were errors made in the sentencing process. One of those errors … has been in the criminal responsibility attributed for the injury suffered by the complainant and the consequent characterisation of the seriousness of the offence.
The respondent would concede that it was in error for his Honour to attribute criminal responsibility for the perforated bowel that the complainant suffered because to do so would be essentially to seek to have the appellant's criminal responsibility for the grievous bodily harm when we accepted a plea to assault occasioning bodily harm.
In essence the proper factual basis for sentencing ought, in our concession, to have been that the injury that amounted to grievous bodily harm though the direct result of the assault, as his Honour found, was not reasonably foreseeable and therefore criminal responsibility for it couldn't be sheeted home to the appellant.
As a result, counsel for the appellant applied for leave to amend the grounds of appeal to add a new ground 3 in these terms:
The sentencing judge erred when he attributed to the appellant criminal responsibility for the perforated bowel suffered by [Mahanga] such that the sentence imposed was manifestly excessive in all the circumstances.
Ground 1 - failure to suspend the sentence
Reading the appellant's written submissions in support of ground 1 it is difficult to discern why the appellant says that the order imposing an immediate term of imprisonment, rather than a suspended term, was erroneous. The three particulars advanced in support of the ground, namely the appellant's plea of guilty, antecedents and offending, are matters that seem primarily aimed at the length of the term.
Four previous decisions are referred to in the written submissions as 'comparative cases': Damasco v The Queen [2003] WASCA 101; The State of Western Australia v Anderson [2004] WASCA 157; Hogue v The State of Western Australia [2005] WASCA 102; Kitts v The Queen [2000] WASCA 113. In our view none of these cases is comparable at all. Relevantly, none of them are cases in which a suspended sentence was imposed at first instance or on appeal.
It may be that those who drafted the notice of appeal thought that the ground encompassed two separate challenges. First, the failure to suspend the sentence resulted in a sentence that was manifestly excessive. Secondly, given the matters referred to in the particulars, the sentence was, because of its length, manifestly excessive. The use of the phrase 'such that' in the wording does not permit of that meaning. Care must be taken in drafting grounds of appeal to ensure that the real import of the challenge is articulated clearly and with sufficient particularity so that the court and the opposing party can identify what matters are in issue.
The principles on which a court proceeds in deciding whether or not to suspend a term of imprisonment are well known: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Collins v The State of Western Australia [2007] WASCA 108 [9] - [18]. In Skipworth v The State of Western Australia [2008] WASCA 64 [8] McLure JA conveniently set out the relevant principles to be applied when considering the sentencing option of suspended imprisonment. Her Honour said:
The legal principles relevant to the sentencing options of suspended imprisonment and conditional suspended imprisonment under s 39(2) of the Sentencing Act 1995 (WA) are set out in Dinsdale. I refer to them in detail in Collins v The State of Western Australia [2007] WASCA 108 [12] - [18]. I do not propose to repeat all the principles here. It is sufficient for present purposes to note that the court cannot impose a sentence of immediate imprisonment unless satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or other lesser sentence. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale [85].
The short paragraph in the sentencing remarks in which his Honour deals specifically with the question of suspension cannot be divorced from all that has gone before it. It is apparent that the option of a suspended sentence was a live issue earnestly canvassed during submissions. His Honour referred to the 'strong submissions' made on behalf of the appellant on the question. He took into account aggravating and mitigating factors and looked specifically at the personal circumstances of the appellant. Counsel for the appellant has not pointed to any relevant factor to which, in his submission, the sentencing judge failed to have regard. In the end, his Honour took the view that the crime was too serious to justify suspension. Even allowing for the factual error referred to above (and developed in greater detail in relation to ground 3) we cannot discern error in the way his Honour approached this question. Ground 1 has not been made out.
Ground 2 - failure to permit cross-examination
The conclusion to which we have come in relation to ground 3 makes it strictly unnecessary finally to determine whether ground 2 is good. But there is an additional reason why it is difficult to do so.
If the sentencing judge is to be taken as stating, as a matter of principle, that the author of a pre‑sentence report, be it oral or written, can never be cross‑examined, we respectfully disagree. That is not the law: HAS v The State of Western Australia [2005] WASCA 29 [50] - [55]. It is true that written pre‑sentence reports are not often made available to the accused until at or shortly before the hearing and the authors are seldom in court at the time. Hence, the practical opportunity to cross-examine is limited. But this does not mean that, in an appropriate case, the accused should not be permitted to challenge, by cross‑examination if necessary, matters of substance that are included in the report and which could be treated as aggravating factors in the sentencing process. It is common experience in the criminal courts in this State, particularly on circuit, that oral pre‑sentence reports are given and that the accused is afforded the opportunity to comment on, and challenge if necessary, the content of those presentations.
The difficulty we have with ground 2 is that it is not clear exactly what matters the appellant wished to challenge and whether they could properly be characterised as matters of substance. As cross-examination did not take place this Court does not have the benefit of the exchange between counsel and the author of the report. Accordingly, this Court is not in a position to determine whether, and to what extent, the impugned material impinged on the sentencing process and affected the end result.
It seems to us that the proper course, in relation to ground 2, would have been to allow the appeal and to remit the matter to the District Court for the sentencing process to proceed according to law. This course of action would have been problematic. The sentencing judge is no longer in office and it would therefore be necessary for another judge to approach the matter afresh. Whether this could be accommodated before the appellant reached his parole eligibility date is uncertain. We do not think it is appropriate to go down that path.
Ground 3 - the factual error
In our view the concession made on behalf of the State, namely that the sentencing judge erred in attributing to the appellant criminal responsibility for the perforated bowel, is properly made. Both the appellant and Crook were involved in the attack on Mahanga and either could have landed the blow or blows that caused the perforated bowel. They may, therefore, be seen to be responsible for it in the sense of having caused it. But they could not properly be found criminally responsible for something that amounted to grievous bodily harm when the State had declined to proceed on the grievous bodily harm charge and instead had accepted the plea to the lesser charge in full satisfaction of the indictment.
There can be no doubt that the sentencing judge placed great weight on the nature of the injuries and the appellant's responsibility for them in assessing the level of gravity that this criminal conduct represented. We have already referred to the passage from the sentencing remarks in which his Honour said that he regarded the fact that the appellant (and Crook) had caused the perforated bowel as the starting point for his consideration of the sentencing options. He expressly tied that finding in with the seriousness of the offence. In characterising the offence as 'in the upper range of seriousness for offences of this type', he again cited the perforated bowel as a factor.
The finding that the offence was in the 'upper range' is consistent with his Honour's starting point of 4 years. The maximum penalty for assault occasioning bodily harm in the absence of circumstances of aggravation (which was this case) is 5 years. The relative seriousness of the offence was a material matter and, in the circumstances, error has been demonstrated. Ground 3 has been made out.
Re‑sentencing the appellant
Because ground 3 has been made out, the sentence imposed on the appellant must be set aside and it falls to the members of this Court to re‑sentence the appellant.
By the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), which came into effect on 14 January 2009, changes were made to the sentencing regime under the Sentencing Act 1995 (WA). Before the amendments, cl 2 of sch 1 of the Sentencing Act (which applied from 29 August 2003) required a court sentencing an offender to a fixed term of imprisonment to impose a term that was two thirds of the term it would have imposed before 29 August 2003. This was the so‑called 'truth in sentencing' legislation. By the 2008 amending legislation, cl 2 of Sch 1 was repealed and a new clause, numbered 3A, inserted in its place. Relevantly, cl 3A provides as follows:
(2)After [14 January 2009], clause 2 does not apply to the sentencing of an offender for an offence -
…
(c)even if the sentencing is as a result of an appeal against a sentence imposed before [14 January 2009],
despite any written or unwritten law to the contrary.
(3)A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before [14 January 2009] whether or not clause 2 applied to their imposition.
(4)A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.
Clause 3A(2)(c) is clear and unambiguous in its terms. Where, on or after 14 January 2009, this Court allows an appeal against a sentence handed down before 14 January 2009, and re‑sentences an offender it must do so without regard to the statutory mandate to reduce the sentence by one third. It seems likely that this Court will be called upon to decide how cl 3A(3) and (or) cl 3A(4) is or are to be understood according to the plain meaning of the words used and the intention of Parliament. But this appeal is not an appropriate vehicle within which to rule on the proper construction of the amending legislation.
We say this for three reasons. First, the result is materially affected by a concession made on behalf of the State and there was little or no controversy as to the term to be imposed in a resentencing. Secondly, the appellant is close to his earliest parole release date. Finally, although written submissions were lodged it became unnecessary to hear counsel on the import of cl 3A of the Schedule.
In his submissions at the appeal hearing, counsel for the State made a further concession. He referred to the sentencing judge's starting point of 4 years as hard to justify. He also indicted that given the nature of the assault and the appellant's antecedents a term of imprisonment of 16 months arrived at after a 25% discount for the plea of guilty, if imposed at first instance, would be one the State 'certainly couldn't contemplate appealing on the basis of manifest inadequacy'.
It seems to us that counsel's reference to 16 months may have arisen from a mathematical slip. Later in his submissions counsel explained that the figure of 16 months was arrived at from a starting point 2 years (rather than 32 months selected by the sentencing judge) reduced by 25% to give credit for the guilty plea. Two years less 25% is 18 months, not 16 months.
Of course, this Court is not bound by that (or any) concession made by counsel and, in any event, the question whether the State could successfully appeal a sentence on grounds of manifest inadequacy raises other issues. But it was clearly a considered position advanced on behalf of the State and therefore requires careful consideration. It is important for another reason. Leaving to one side the appellant's challenge under ground 1, it shows that there is little controversy on the length of the term that ought to have been imposed.
As we have indicated, the maximum penalty for assault occasioning bodily harm is 5 years. The circumstances of this offence do not place it in the most serious category but it was far from minor. Having commenced the attack, the appellant returned to his unit, obtained a weapon and went back to resume the assault. In terms of relative seriousness the offence fits somewhere near the middle of the range. The appellant is entitled to credit for the plea of guilty. The appellant was 34 years of age at the time of the offences and has a relatively minor record of prior offending. The antecedent report does not disclose any previous crimes of violence.
Given all of the circumstances, we are satisfied that a sentence of 18 months' imprisonment is appropriate. The starting point is 2 years, reduced by 25% for the guilty plea. In our view the resulting term of 18 months adequately reflects the degree of criminality balanced against mitigating and personal factors. The order for eligibility for parole should remain, particularly as the appellant will benefit from a period of independent supervision. It seems he has a problem with alcohol, suffers from depression and his familial support mechanisms are limited.
Conclusion
The result of this appeal does not depend on any particular construction of cl 3A(3) and (or) cl 3A(4) of sch 1. The proper interpretation of those provisions will be determined by this Court when the issue arises in an appropriate vehicle. We would make the following orders.
1.Leave be granted to amend the grounds of appeal to add ground 3 in the terms set out above.
2.There should be leave to appeal on all grounds.
3.The appeal should be allowed in relation to ground 3 but dismissed on grounds 1 and 2.
4.The sentence of 2 years' imprisonment should be quashed.
5.In lieu of that sentence there will be a sentence of imprisonment of 18 months commencing on 16 June 2008.
6.The appellant be eligible for parole on that sentence.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Owen and Miller JJA. I am in agreement with them, save in relation to one issue, to which I will turn in a moment. I would also wish, in relation to ground 1, to make certain additional observations.
Ground 1 - the structure of the appellant's submissions
Whilst I agree with the observations by Owen and Miller JJA concerning the difficulties with the ground of appeal as drafted and the submissions advanced in support of it, I would wish to note also a fundamental difficulty with the way in which the written submissions in support of ground 1 are structured. The structure is as follows.
Before coming directly to ground 1, the appellant's written submissions set out the charge faced by the appellant and recite the facts of the offence, in a relatively uncontroversial way. The submissions then recite certain mitigating and aggravating factors and briefly explain the structure of the sentence.
In submissions directed solely to ground 1, the written submissions proceed for some 11 pages to refer to four cases, apparently chosen at random, in which offenders had been sentenced for offences which were, or which included, assault occasioning bodily harm. In relation to each case, there is a list in "bullet point" form, setting out certain of the facts constituting the offences, certain of the findings made by the sentencing judges, and certain of the observations made by the appellate court, in an abbreviated form. There is no discussion of what it is about any of those cases which might be relevant to the case at hand, and nor is there anything to be extracted from any of the various lists which might indicate what is the usual sentencing range in relation to offences of assault occasioning bodily harm.
Cases exist in which there is discussion of the range of sentences appropriate to assault occasioning bodily harm. They include Kilner v The Queen [1999] WASCA 189, Mourish v The State of Western Australia [2006] WASCA 257 and The State of Western Australia v Camilleri [2008] WASCA 217. They are not referred to by the appellant. Those cases demonstrate that it is difficult to discern a tariff because of the great variation in circumstances in such cases, but that in cases which
have involved pleas of guilty, a post‑transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment.
Returning to the structure of the appellant's submissions relating to ground 1, under the heading "Conclusion - Ground 1", the written submission concedes that, where there has been clear premeditation and/or the repeated use of weapons, the sentence will be one of immediate imprisonment. It is then asserted that the sentences imposed in some of the four cases referred to by the appellant were for premeditated assaults. In relation to one of those cases, that submission is plainly wrong. That case is Hogue v The State of Western Australia [2005] WASCA 102; it is, in any event, difficult to see why on earth that case was selected for inclusion, as it was an extremely unusual set of circumstances.
There then follows from the above submissions the bald assertion, "[i]t was open to his Honour to suspend what was otherwise an appropriate term of imprisonment; see McLure JA at [21] in Collins v The State of Western Australia [2007] WASCA 108". The paragraph from Collins which is referred to, restates the effect of s 39(3) of the Sentencing Act1995 (WA), and sheds no light on what might be an appropriate disposition in the particular circumstances of this case.
The point of the above description of the appellant's written submissions in support of ground 1, is to indicate as clearly as I can what should not be done in relation to a ground attempting to assert that a sentence is outside an appropriate range, or that a sentence should have been suspended (whichever is the ultimate intention of ground 1). That is, such a ground cannot be made out by simply describing, without any sensible analysis, a very small number of cases chosen for no apparent reason. What should be done, if there is an assertion that a sentence is outside an appropriate range, is, as appropriate: to refer to cases in which the appropriate range is considered and discussed; to extract the (relatively small) number of salient features from a large sample of cases in order to demonstrate what a range might be; or, in the rare case where it is possible to do so, to demonstrate by reference to a case or cases plainly on all fours with the case in hand what the court has, in the past, considered to be an appropriate sentence. If there is no authority on point, it will be necessary to apply basic sentencing principles, in order to explain the assertion.
Although it should not be necessary to say so, I also make the observation that, where a complaint is of a failure to suspend a term of imprisonment, it is necessary to refer to the principles governing suspension and to demonstrate why suspension was appropriate in the instant case.
I have made these observations at some length, because the structure of submissions which I have described above is unfortunately one which the court has encountered on more that one occasion. This practice is unhelpful. It is a practice which almost inevitably leads, as in the present case, to refusal of leave to appeal.
The resentencing of the appellant
I come now to the sole point at which I differ from the reasons of Owen and Miller JJA. Their Honours suggest that this appeal is not an appropriate vehicle within which to rule on the proper construction of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), (the amending legislation). I agree with their Honours that this is not an appropriate case for any extended consideration of the amending legislation, but it appears to me that it is necessary to consider some aspects of it. That is because, as demonstrated by McLure JA in one of the cases to which I have already referred (Mourish, at [12]), there is, or may be, a difference between the term of imprisonment which might, by reference to an appropriate range, be imposed upon the appellant if the court has regard to the range established prior to the transitional provisions, or if it has regard to a range established subsequent to those provisions, but prior to passage of the amending legislation.
The effect of the amending legislation was not the subject of submissions in this case, although written submissions were filed by a number of counsel who appeared in cases heard during the course of this week. All of those sets of submissions raise a number of issues concerning the effect of the amending legislation. It is undesirable to deal with any of those issues, in the absence of full oral argument, except to the very limited extent necessary to dispose of this case. I should therefore make it clear that, in considering the appropriate sentence for this appellant, I have acted upon a number of assumptions, which are as follows.
Because of certain concessions made by the State, I assume that this case is nowhere near the "worst category" of assault occasioning bodily harm. That concession appears, in my view, to be correct. I assume that, because there is no question of imposing the maximum statutory penalty in the present case, it is sufficient for present purposes to assume that the maximum available to this court would be either the 5‑year statutory maximum, or the practical maximum of 3 years 4 months which would have applied subsequent to the transitional provisions and prior to the amending legislation. For present purposes, there is no relevant difference between those two terms, in that either would indicate that the view to be taken of assault occasioning bodily harm is that it is an offence which may, at the upper end, call for a significant term of imprisonment, but would not call for a term of the severity reserved for cases categorised by the legislature as being substantially more serious, such as armed robbery, offences involving grievous bodily harm, and the like.
Following on from those assumptions, I assume that, for an offence involving some degree of premeditation, albeit for a brief period, and involving the use of a weapon to commit an assault upon a complainant who was helplessly intoxicated, a sentence of the order of 2 years' imprisonment (leaving aside the question of the appellant's plea) would be appropriate.
For the purposes of the present case, I assume, without deciding, the correctness of the following observations by Howie J in R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1:
A sentencing discretion is not properly exercised by simply determining where in a range of sentences the particular matter before the court falls, and that is so whether that range has been established by a guideline judgment, by a pattern of sentences reflected in statistics maintained by the judicial commission, or by a consideration of the sentences imposed in other identified cases. While an established range of sentences for a particular class of offence and offender is important because of the need for consistency in sentencing, a consideration of the range will normally be the last point of reference rather than the first. [51]
It appears to me that there may be room for debate concerning the extent to which the observations just quoted really capture the nature of a sentencing judge's task in a case where an intermediate appellate court has authoritatively indicated an appropriate sentencing range, but that it is an issue for another day.
The result of those assumptions is to leave me with a relatively confined question. It is whether, in asking myself if the term of 2 years is consistent with the range of sentences customarily imposed in respect of offences of this kind, I should look at the "range" of minimum terms likely to be served by an offender under any established sentencing range and whether, having done so, I should then ensure that any sentence I impose would be consistent in its practical effect with that range of minimum terms.
That question appears to me to raise, inescapably, the question of the meaning and effect of cl 3A(3) of the amending legislation which reads:
A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before [14 January 2009] whether or not [the transitional provisions] applied to the imposition.
This clause was enacted against a background of sentencing principle. These propositions concerning that background appear to me to be uncontroversial:
(1)A sentencing judge must have regard to the range of sentences customarily imposed in respect of the type of offence for which the sentencing judge comes to sentence an offender.
(2)Clause 3A(3), therefore, is not conferring upon the court a discretion to have regard to the range of sentences customarily imposed; rather, the requirement to have regard to such a range is well established by pre‑existing sentencing principle.
(3)Prior to the amending legislation, it was well established that the court should not, in fixing sentences, have regard to the actual term likely to be served in custody; that was a matter to be left to the executive (Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 at [18]).
(4)Where parole eligibility was ordered, the term in fact likely to be served in custody did not significantly vary in the period before and after the introduction of the transitional provisions, in relation to any particular established range of sentences. The head, or maximum, sentence did, of course, differ before and after the transitional provisions. The effect of the transitional provisions was to require the court to reduce the head sentence, which reduction had the effect that the minimum to be served would be the same before and after the transitional provisions in relation to offences of a like kind (see Worthington at [56] ‑ [71]).
(5)As was pointed out in Worthington at [76], under the transitional provisions it was expected that, in respect of some types of offences, what was effectively a "new range" would be established. That has occurred in respect of some offences. To take an example, prior to the transitional provisions, the range of sentences ordinarily considered appropriate to an offence of armed robbery would have been between 6 and 9 years. After the transitional provisions, a range of 4 to 6 years became established relatively quickly, because there are a significant number of offences of armed robbery which do not greatly vary either in the circumstances of the robbery or in the personal circumstances of the offender.
(6)For other offences, such as many assault offences, it is more difficult to discern an established post‑transitional provision range. There may, however, be a "range", which can be discerned if one looks at sentences imposed prior to the transitional provisions, or if one looks at sentences imposed both prior to and after the transitional provisions, taken together.
Against the background of those facts, it appears to me that, in relation to a range which predates the transitional provisions, the legislature, in permitting the court to have regard to the minimum term, was, in effect, directing the court to test whether a sentence falls within the appropriate range by reference to the minimum period in custody which an offender sentenced within that range would be liable to serve before being eligible for parole. Although cl 3A(3) provides that a court "can" have regard to the minimum custodial period of fixed terms imposed prior to 14 January 2009, that is a discretion to be exercised in accordance with established sentencing principle. Established sentencing principle requires consistency of sentencing, so far as possible.
I have therefore had regard to pre‑transitional provisions minimum terms, in arriving at an "appropriate" term in this case of 2 years, before allowing any discount for the appellant's plea of guilty.
I would emphasise that, in the analysis above, I have looked at cl 3A(3) against the background of existing legal principle and legislative history, but have not attempted to analyse its interactions with other parts of the amending legislation. That interaction may raise difficult questions, which both parties in this case in effect urged the court to leave for another day.
37
10
1