Isaacs v Director of Public Prosecutions for Western Australia
[2023] WASC 154
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ISAACS -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 154
CORAM: VANDONGEN J
HEARD: 1 MAY 2023
DELIVERED : 15 MAY 2023
FILE NO/S: SJA 1004 of 2023
BETWEEN: AYDEN GIAN ISAACS
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 40191/2022 and PE 40192/2022
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of common assault and assault occasioning bodily harm - Appellant sentenced to immediate imprisonment - Whether sentences imposed were manifestly excessive - Whether it was reasonably open to the Chief Magistrate to be positively satisfied that the only appropriate sentence was a term of imprisonment to be immediately served - Resentencing of appellant
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Application for leave to appeal allowed
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Z A V Gilders & C Porter |
| Respondent | : | L G Knuckey & G N Beggs |
Solicitors:
| Appellant | : | ZG Criminal Law |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ADA v Director of Public Prosecutions for Western Australia [2022] WASC 112
Bykerk v Director of Public Prosecutions (WA) [2022] WASC 451
Closter v Humphreys [2012] WASC 145
Cox v Whitehead [1999] WASCA 277
Crossley v Cole [2006] WASC 43
Davies v The State of Western Australia [2021] WASCA 71
Drage v Power (Unreported, WASC, Library No 940400, 2 August 1994)
Esh v Cooper [2009] WASC 122
Evans v Richards [2015] WASC 53
Garlett v Balic [2016] WASC 172
Gill v Warrener [2021] WASC 332
HNA v The State of Western Australia [2016] WASCA 165
Holden v The State of Western Australia [2009] WASCA 50
Houghton v The State of Western Australia [No 2] [2022] WASCA 7
Hume v Pettyfer [2014] WASC 22
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
Kabambi v The State of Western Australia [2019] WASCA 44
Malpuss v Giuffre [2020] WASC 303
Maroney v The State of Western Australia [2006] WASCA 130
McCoombe v The State of Western Australia [2016] WASCA 227
McCormick v Director of Public Prosecutions for Western Australia [2022] WASC 275
Mead v Skinner (Unreported, WASC, Library No 940132, 18 March 1994)
Medanovic v Barrett [2016] WASC 237
Miorada v The State of Western Australia [2022] WASCA 143
Puntigam v The State of Western Australia [2023] WASCA 46
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shi v The State of Western Australia [2020] WASCA 197
The State of Western Australia v Rayapen [2023] WASCA 55
Trajkoski v The State of Western Australia [2018] WASCA 176
Ugle v The State of Western Australia [2012] WASCA 104
Ugle v Wells [1999] WASCA 21
Walker v Jarvis [2021] WASC 182
Wiltshire v Mafi [2010] WASC 111; (2010) 211 A Crim R 236
VANDONGEN J:
On 24 November 2022 the appellant pleaded guilty to two offences in the Perth Magistrates Court. The first was an offence of common assault, contrary to s 313(1)(b) of the Criminal Code (WA), and the second was an offence of assault occasioning bodily harm, contrary to s 317(1). Subsequently, on 20 December 2022, the appellant was sentenced to a total of 15 months imprisonment to be served immediately.
The appellant has sought leave to appeal against the sentences imposed on him. The appellant contends that those sentences were manifestly excessive because it was not reasonably open to the magistrate to be positively satisfied that the only appropriate sentence was a term of imprisonment to be immediately served.
The hearing of the appeal was listed on an urgent basis, presumably because there was a risk that the appellant would otherwise have served the non-parole period of his sentence before the appeal was heard and determined in the ordinary course. The appellant had not applied for bail pending the hearing and determination of his appeal.
At the end of the appeal hearing on 1 May 2023, I allowed the appeal and released the appellant on bail to appear before me on 15 May 2023 for re‑sentencing. I also made an order that a pre‑sentence report be prepared.
When the appellant appeared on 15 May 2023, I varied the sentences that were imposed by the Chief Magistrate, pursuant to s 14(1)(c) of the Criminal Appeals Act 2004 (WA) (Act), and in respect of both offences I imposed an intensive supervision order for a period of 12 months with a program requirement, pursuant to s 41(3)(b) of the Act.
Following are the reasons for my decision.
General legal framework of appeal
Pursuant to s 7(1) of the Act, a person who is aggrieved by a decision of a court of summary jurisdiction can appeal to the Supreme Court against that decision. Relevantly, for the purposes of this matter, a 'decision' of a court of summary jurisdiction includes a sentence imposed as a result of a conviction.[1]
[1] Criminal Appeals Act 2004 (WA) s 6(f).
An appeal brought pursuant to the right conferred by s 7(1) of the Act may be made, relevantly, on the ground that the court of summary jurisdiction made an error of law, or imposed a sentence that was inadequate or excessive, or on the basis that there has been a miscarriage of justice.[2]
[2] Criminal Appeals Act 2004 (WA) s 8(1).
Leave is required for each ground of appeal,[3] and if leave to appeal is not granted on at least one ground then the appeal is taken to have been dismissed.[4] Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding. A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5]
[3] Criminal Appeals Act 2004 (WA) s 9(1).
[4] Criminal Appeals Act 2004 (WA) s 9(3).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
The charges and the sentencing hearing
As I have already noted, the first charge alleged that the appellant unlawfully assaulted a person. The second charge alleged that he unlawfully assaulted another person and caused that person bodily harm.
The facts relating to those offences, and which were read aloud by the prosecutor at the sentencing hearing, were as follows:
At 1.35 am on Sunday, 18 September this year, the accused was at the Perth Crown Casino with his girlfriend and family and friends. There was an incident whereby the accused's girlfriend had been requested to leave the casino and was being walked towards one of the entrances by casino security officers. The accused has not been aware of this and has immediately gone straight towards where his girlfriend was, but he was stopped by casino security. Because he was aggressive in approach towards him, security officers have restrained him and held onto him. The security manager has spoken briefly to the accused, advised him that, if he left quietly now, there would be no further issues. The accused has been walked downstairs towards the exit with two officers holding his arms when he has suddenly turned and has spat directly in the face of one of the officers holding him and has broken free. The officers have chased after the accused for a short distance and have then grabbed him and attempted to restrain him and everyone has ended up on the ground. One of the officers has been holding the accused from the rear while they were on the ground when the accused has leaned down and bitten hard on his lower right arm, causing a large bite mark. The accused has then turned his head and spat in the face of that person. Sawyer has been attempting to hold onto the legs of the accused at the same time when the accused has kicked directly in the forehead of the first victim. The accused was handcuffed and taken to a casino holding room where police attended a short time later. As a result of the injury to Sawyer, Sawyer will be getting a blood test because of the spit to his face, but only suffered minor discomfort to his forehead as a result of the kick. As a result of the injury to the other person, once again, he had a blood test related to the spit to his face and suffered pain and discomfort to his right arm where he was bitten.
Those facts were accepted by the appellant.
The precise factual basis for each of the offences is not entirely clear from what was read by the prosecutor. The prosecutor appears to have alleged that the appellant spat on two different security officers during the incident at the casino. It was also alleged that the appellant kicked one of the security officers in the forehead. However, it is not clear which of those security officers was kicked. It might be concluded that the 'first victim', presumably the victim who was first spat on, was kicked. On another view it might be concluded that it was the person called 'Sawyer' who was kicked.
After the facts were read aloud, the prosecutor played some closed‑circuit television (CCTV) footage of the incident to the court. According to the transcript of the proceedings in the Magistrates Court, only about 50 seconds of that footage that was played. With the agreement of counsel for the appellant, CCTV footage of the incident was played at the hearing of the appeal. The footage that I viewed at the hearing was considerably longer than 50 seconds and therefore I must have been shown more of the incident than was seen by the Chief Magistrate.
The CCTV footage that I saw showed that the appellant was restrained while he was being led by several security officers towards what appeared be one of the exits at the casino. As he was being led away, the appellant turned to one side and spat in the face of one of the officers. The appellant then broke free, and, after a brief pursuit, was brought to the ground near a glass entrance. At one point, while the appellant was lying on the ground, he was very forcefully restrained by several security officers. Although it was not clear when the appellant bit one of those officers, the appellant's counsel submitted that it occurred while he was lying on his back on the ground, at a point when a security officer can be seen with one of his arms around the front of the appellant's face and neck area.
My overall impression of the video footage is that the appellant was initially visibly upset, presumably because his partner was being forced to leave the casino. Other security guards then decided to remove the appellant as well. The appellant was clearly unhappy with that idea. Although no sound can be heard on the video that I saw, a heated exchange of words appeared to take place between the appellant and the guards while they were trying to remove him from the casino. While this was going on the appellant deliberately spat in the face of one of the guards.
It is quite understandable that this would have upset the guard. However, it seems as though several of the other guards also responded angrily, and what can only be described as a melee ensued. To this point, it might reasonably be said that the appellant brought much of this on himself. However, when the appellant subsequently bit one of the guards he was on the ground and was being restrained by five large men, one of whom had put his arm around the appellant's face and mouth area. Although the appellant did not offer any excuse for his decision to deliberately bite the victim, the context in which he did that act provides some explanation for this act.
After the CCTV footage was played to the Chief Magistrate, counsel for the appellant presented a plea in mitigation. Counsel explained that the appellant had reacted poorly when he saw his partner being restrained by security guards, and further, that he had committed the offences in circumstances in which he was dealing with the recent death of a friend.
Counsel submitted that it was open to the court to impose fines and to make an order pursuant to s 56(2) of the Sentencing Act 1995 (WA) that any such fines be paid to the victims of the assaults. It was also submitted that although the appellant did not remember biting the security guard, it was 'not a situation where he has actively reached and bitten out at someone'. Counsel said that the appellant nevertheless accepted that it constituted an 'unlawful application of force'.
Reference was made to letters of support written by the appellant's family and friends, which described him as someone who is generally loving, calm, and supportive, and which suggested that his offending behaviour was out of character. Counsel also informed the court that the appellant was employed on a full‑time basis, and that he was saving to buy a home with his partner, who was expecting their first child.
Counsel explained that the appellant had previously committed two offences of assault occasioning bodily harm in 2018, but that these offences were committed in the context of a fight in which the appellant was 'coward punched' and had suffered facial fractures. It is apparent from the copy of the appellant's criminal record that was provided to me during the hearing of the appeal that fines were imposed for both of those offences.
Counsel also submitted that it was open to the court to take into account, as a mitigating factor, the fact that he was 25 years of age at the time of the offending. It was said that the appellant 'by the barest of margins … has the benefit of youth'.
Finally, counsel indicated that if the court was of the view that the offences were of such seriousness that it was inappropriate to fine the appellant, then the appellant was 'open to participation in counselling', presumably in support of a submission that it was open to the court to impose some other form of sentence falling short of an immediate term of imprisonment.
After hearing from counsel, the Chief Magistrate then proceeded to sentence the appellant. There is no need for me to set out the sentencing remarks in full. This is because the appellant's only ground of appeal is that error should be inferred from the fact that he was sentenced to a term of imprisonment to be immediately served and does not allege that the Chief Magistrate's sentencing remarks reveal any specific error.
Having regard to the Chief Magistrate's summary of the facts, it appears his Honour sentenced the appellant on the basis that the offence of common assault was constituted by his act of spitting as he was walked towards the exit while two officers were holding his arms. Further, the appellant was sentenced on the basis that the offence of assault occasioning bodily harm related to his act of biting a different security guard while he was being held on the ground after he had briefly escaped their custody.
The Chief Magistrate accepted that the appellant had pleaded guilty at the first reasonable opportunity and afforded him a 25% discount for the purposes of s 9AA of the Sentencing Act. His Honour also found that the appellant had shown 'some genuine remorse towards the victim', because he had written a letter of apology.[6]
[6] The Chief Magistrate's reference to 'victim' must have been intended to be a reference to both victims, given the appellant's counsel's submission that the letter demonstrated genuine remorse in relation to both victims.
The Chief Magistrate took into account the letters of support written by the appellant's friends and family. His Honour also had regard to the fact that the appellant had suffered some injuries in the course of his interaction with the security guards, and noted that the appellant had previously been convicted of two offences of assault occasioning bodily harm in 2020.
When describing the seriousness of the appellant's offending behaviour, the Chief Magistrate said that it was 'blatant and disgusting'. His Honour said that spitting and biting were particularly serious forms of assault, referring to the deliberate nature of the appellant's actions and to the associated 'risks of fluid‑borne disease'.
The Chief Magistrate concluded that the offending was so serious that terms of imprisonment to be immediately served were the only appropriate sentences that properly be imposed. His Honour then sentenced the appellant to 9 months imprisonment for the offence of common assault, and 6 months imprisonment for the offences of assault occasioning bodily harm. An order was made that the sentence of 6 months imprisonment be served cumulatively, resulting in a total effective sentence of 15 months imprisonment.
An order was also made that the appellant be eligible for parole, which meant that he is eligible to be considered for release on parole after serving 7 and a half months.
Grounds of appeal and the parties' submissions
The Notice of Appeal contains two grounds of appeal:
1.The sentencing magistrate erred in imposing a sentence that was manifestly excessive as to type.
2.The sentencing magistrate erred in imposing a sentence that was manifestly excessive having regard to the overall criminality of the offending.
Although the first ground of appeal suggests that only one sentence was imposed on the appellant, I have interpreted that ground as amounting to a complaint that the Chief Magistrate erred in imposing a sentence of imprisonment to be immediately served in respect of both offences.
The appellant's written submissions only addressed the first ground. At the hearing of the appeal counsel for the appellant confirmed that ground 2 was abandoned. Counsel said that the appellant's only contention on appeal was that the sentences of imprisonment to be immediately served were manifestly excessive because it was not reasonably open to the sentencing court to be positively satisfied that conditional suspended imprisonment was not an appropriate sentence in respect of each offence.
In written submissions, the appellant conceded that the offending was 'particularly serious' considering the risks associated with the victims being exposed to bodily fluids, and the tests that they were required to undertake because of that exposure. However, it was submitted that it was not open to the Chief Magistrate to be positively satisfied that suspension of the terms of imprisonment, on conditions, would be inappropriate, having regard to:
(a)the circumstances of the offending;
(b)the appellant's youth;
(c)the timing of the guilty plea;
(d)the appellant's willingness to engage in rehabilitation, and an acknowledgement on his part that such interventions would be of benefit to him; and
(e)the appellant's personal circumstances, including his partner's pregnancy and the fact that he had support from his family.
At the hearing of the appeal counsel emphasised that although the offences were serious, they were committed in circumstances in which he first approached the security guards to protect his partner. Counsel also submitted that although he then behaved aggressively and inappropriately, it was because he was emotionally affected by the death of a friend. Counsel further submitted that although the offending behaviour was blatant, disgusting, and calculated to escape from the guards, it all happened very quickly and in circumstances in which he was restrained very forcefully.
Counsel placed reliance on what he suggested was the appellant's relatively young age, and submitted that because of his age he was more capable of rehabilitation. Counsel submitted that these mitigatory factors, together with the early pleas of guilty and the presence of genuine remorse, supported a conclusion that the sentences imposed were manifestly excessive because they positively pointed to the appropriateness of a conditionally suspended term of imprisonment.
On occasions it appeared as though counsel was suggesting that the Chief Magistrate had made express errors, particularly in relation to the way in which his Honour dealt with the appellant's age and his prospects of rehabilitation. However, counsel expressly confirmed that the appellant did not rely on any express errors, and contended only that error should be implied from the type of sentence that was imposed.
The respondent submitted that the offending conduct was persistent and vicious, involving two separate and degrading assaults on two victims who were carrying out their lawful duties. The respondent also submitted that when the appellant spat on one of the victims there was a risk of disease transmission. However, when I queried the correctness of that submission, given that there was no evidence that the appellant had been infected with any disease, counsel for the respondent refined her submission and instead drew attention to the fact that the victims would have experienced a degree of apprehension about a risk of disease transmission.
The respondent contended that the appellant was not entitled to any mitigation because of his age and that, on the evidence before the court below, it was not open to the Chief Magistrate to have given any material weight to the fact that the appellant's partner was pregnant. The respondent also argued that the appellant's criminal record meant that it was not open to the Chief Magistrate to have afforded him any leniency for his prior good character, and that on the contrary it demonstrated a heightened need for specific deterrence in determining the appropriate sentence to be imposed.
The respondent's ultimate position on the appeal was that the appellant had failed to establish that it was not reasonably open to the Chief Magistrate to impose terms of immediate imprisonment.
Applicable principles
The relevant principles to be applied in the context of an appeal against sentence where it is asserted that a sentence that was imposed was manifestly excessive, or that an aggregate sentence infringes the totality principle, have been referred to by the Court of Appeal on a great many occasions.[7] It is sufficient for present purposes to refer to what was said in Kabambi v The State of Western Australia [2019] WASCA 44 [21]:
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. 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. Thus, 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.
In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
…
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. 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.
When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.[8]
[7] See, for example, Salkilld v The State of Western Australia [2017] WASCA 168 [48]; see also Trajkoski v The State of Western Australia [2018] WASCA 176 [30].
[8] See also Puntigam v The State of Western Australia [2023] WASCA 46 [297].
Where, as here, it is said that the sentence is manifestly excessive because the wrong type of sentence was imposed, the question for the appellate court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and in all of the circumstances, to be positively satisfied that none of the sentencing options listed before that type of sentence in s 39(2) of the Sentencing Act were appropriate.[9] Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.[10]
[9] HNA v The State of Western Australia [2016] WASCA 165[30]. See also the recent decision of the Court of Appeal in The State of Western Australia v Rayapen [2023] WASCA 55.
[10] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [229].
In Shi v The State of Western Australia [2020] WASCA 197 [39], the Court of Appeal reiterated the principles to be applied in determining whether to impose an immediate term of imprisonment:
A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose some form of suspended imprisonment. It is established that:
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence. (citations omitted)
It follows that if I am satisfied that it was not reasonably open to the Chief Magistrate to be positively satisfied that the only appropriate sentencing option was a term of immediate imprisonment then I would find that the sentences imposed on the appellant were manifestly excessive because the wrong type of sentence was imposed. If I were to reach that conclusion then, pursuant to s 14(1)(b) and (c) of the Act, I may allow the appeal and set aside or vary the decision that was made in the Magistrates Court. I may also have regard to any relevant matter that has occurred between the appellant's conviction and the hearing of the appeal.[11]
[11] Criminal Appeals Act 2004 (WA) s 14(5). See also s 41(4).
If I decide to vary the sentences that were imposed in the Magistrates Court, I may impose a different sentence involving a different sentencing option.[12]
[12] Criminal Appeals Act 2004 (WA) s 41(3)(b).
Consideration
The maximum penalty for an offence of common assault, contrary to s 313(1)(b) of the Criminal Code, is 18 months imprisonment and a fine of $18,000.
The maximum penalty for an offence of assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code, is 5 years imprisonment. Section 317 provides for a summary conviction penalty of 2 years imprisonment and a fine of $24,000. However, this is a jurisdictional limit and not a maximum penalty.[13]
[13] Wiltshire v Mafi [2010] WASC 111; (2010) 211 A Crim R 236 [26].
The appellant's personal circumstances at the time of sentencing included that he was employed on a full‑time basis, and that he was in a relationship with his partner who was pregnant at the time of sentencing. The Chief Magistrate was also told that the appellant was saving for a house to buy for his family. Further, other than some prior convictions, including convictions for assault occasioning bodily harm in 2018, he was a man who was well regarded by his family and friends.
The appellant submits that his offending is, to some extent, mitigated by his youth. The appellant relied on the summary of principles relating to the sentencing of youthful offenders in Miorada v The State of Western Australia [2022] WASCA 143 [33], submitting that because the Chief Magistrate found the appellant to be a young man, his age was a mitigating factor that pointed positively towards a sentence other than a term of immediate imprisonment because of the desirability of rehabilitation.
In my view the appellant's age was not a mitigating factor. He was 25 years of age at the time, and therefore an adult. According to his counsel he was working full‑time, his partner was pregnant, and he was saving to buy a house. There is nothing that suggests he had offended because he was 'impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person'. Further, there is no basis for concluding that the appellant might be more capable of rehabilitation because he was 25 years of age, or that a term of imprisonment would be a heavier burden on him than for an adult.[14]
[14] Ugle v The State of Western Australia [2012] WASCA 104 [71].
The appellant pleaded guilty at the first reasonable opportunity and the Chief Magistrate afforded him the maximum 25% discount allowable in accordance with s 9AA of the Sentencing Act. Further, the Chief Magistrate took into account the fact that he had 'some genuine remorse' and the fact that he had acknowledged that his behaviour was inappropriate.
The appellant's offending conduct was serious. It is clear from the admitted facts, and from the CCTV footage, that the initial trigger for the appellant's conduct was his realisation that security guards had detained his partner. His response was to approach the guards in an aggressive manner. When the guards responded by restraining him and telling him that if he left quietly there would be no further issues, the appellant deliberately escalated the situation by spitting on one of them. A short while later when he and the officers were grappling on the ground, he then bit another security officer on the arm causing a bite mark. As the Chief Magistrate said, correctly in my view, the appellant's conduct was 'disgusting'. Both victims were doing their job protecting other casino patrons and casino property. Neither of them deserved to be spat on or to be bitten.
On the other hand, there was no evidence about where the appellant's spit landed on the victim's face, and there was certainly nothing to suggest that it landed in his eyes or mouth. There was also no evidence that either of the victims suffered any significant or long‑standing injuries that required medical assistance, or that they were actually at risk of contracting any disease from being spat on or being bitten. However, it can be readily inferred the offending caused them distress, and both of them later had blood tests to reassure themselves that they had not contracted any transmissible disease.
In assessing the seriousness of the appellant's conduct it must also be remembered that while the appellant's act of spitting was inexcusable, the CCTV footage demonstrates that his act of biting occurred when he was being forcefully restrained on the ground by a number of security guards, one of whom had hold of him around his face and mouth area.
The appellant referred me to two previously decided cases that were said to be broadly comparable. The first of those cases was McCormick v Director of Public Prosecutions for Western Australia [2022] WASC 275, which concerned an appeal from the Magistrates Court in relation to a number of offences, including two charges of assaulting a public officer, contrary to s 318(1)(d) of the Criminal Code. However, that case is of no assistance because the relevant sentence appealed against was a sentence of suspended imprisonment.
The other case referred to was ADA v Director of Public Prosecutions for Western Australia[2022] WASC 112. As the appellant's counsel properly conceded at the hearing of the appeal, that case is also of no assistance because the grounds of appeal were concerned only with the question of whether the magistrate had erred in not granting a spent conviction order.
The respondent referred to several cases in its written submissions, including the decision of Tottle J in Medanovic v Barrett [2016] WASC 237, and the four cases considered by his Honour.[15] However, I agree with the respondent's submission that those cases also have limited comparative utility given the differences in the relevant circumstances. As the respondent submits, the limited case law that exists does not demonstrate that there is an established range of sentences that are customarily imposed for the offence of common assault.
[15] Ugle v Wells [1999] WASCA 21; Esh v Cooper [2009] WASC 122; Evans v Richards [2015] WASC 53; Garlett v Balic [2016] WASC 172.
Some assistance can be obtained from the decision of Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234, and the cases that were referred to by Derrick J at [133] ‑ [144].[16] Those cases were concerned with sentences imposed in the Magistrates Court for offences of assaulting a public officer by spitting. His Honour concluded that his review of the cases indicated that absent totality considerations, a sentence of 9 months imprisonment for conduct involving spitting in the face of a prison officer was not outside the range of sentences commonly imposed for such offences. Of course, that conclusion is of very limited assistance in this case given that the appellant was not a prisoner at the time of these offences, and the victims were not prison officers. It can be readily understood why spitting on a prison officer in a custodial setting would be regarded as a particularly serious form of assault.
[16] Mead v Skinner (Unreported, WASC, Library No 940132, 18 March 1994); Drage v Power (Unreported, WASC, Library No 940400, 2 August 1994); Cox v Whitehead [1999] WASCA 277; Crossley v Cole [2006] WASC 43; Walker v Jarvis [2021] WASC 182; Maroney v The State of Western Australia [2006] WASCA 130.
I also note that in Hume v Pettyfer [2014] WASC 22, Hall J decided that a sentence of 7 months imprisonment was not manifestly excessive for an offence of assaulting a public officer involving multiple acts: including spitting, a kick to a vulnerable part of the body, and several punches. Of course, the maximum penalty for an offence of assaulting a public officer is significantly greater than the maximum penalty for an offence of common assault.
The Court of Appeal has confirmed that no tariff exists for the offence of assault occasioning bodily harm because of the wide variety of circumstances in which that offence can be committed.[17] Further, although the range of sentences identified by Wheeler JA in Holden v The State of Western Australia [2009] WASCA 50 [43] (being between 6 months suspended imprisonment to 2 years immediate imprisonment where there is a plea of guilty) has been referred to on a number of occasions, nothing said by Wheeler JA should be understood as suggesting that a sentence outside that range would be erroneous.[18] In Davies v The State of Western Australia [2021] WASCA 71 [59] the Court of Appeal further observed that it has been suggested that the older authorities relied on in Holden must now be considered with some caution because they may not reflect contemporary sentencing standards, and that there are some signs that sentences for assault occasioning bodily harm may be 'firming up'.
[17] Davies v The State of Western Australia [2021] WASCA 71 [58].
[18] McCoombe v The State of Western Australia [2016] WASCA 227 [29].
The respondent submitted that the circumstances of this case bear some similarities to Closter v Humphreys[2012] WASC 145. I do not accept this submission. In Closter the appellant was convicted of one offence where it was accepted that she did not intentionally strike or injure the victim. There are also differences in the personal circumstances of that offender when compared to the appellant's personal circumstances.
Although there may not be an established range of sentences that are customarily imposed for the offences of common assault and assault occasioning bodily harm, and an immediate term of imprisonment may be an appropriate disposition in certain circumstances, based on a review of the cases that I have referred to it cannot be said that this is the type of sentence that is usually imposed.
Conclusion
The appellant's submissions were confined to the proposition that the sentences imposed on him were manifestly excessive because it was reasonably open to have imposed a conditionally suspended term of imprisonment. However, consistent with the broad way in which the ground of appeal is expressed, the real issue for me to determine is whether the sentences were manifestly excessive because the wrong type of sentences were imposed. Accordingly, the question raised by the ground of appeal is whether it was reasonably open to have imposed immediate terms of imprisonment.
I have had the considerable benefit of having had time to consider this matter. It is obvious that the Chief Magistrate did not have that same luxury. His Honour was dealing with a busy list, and clearly had little or no prior notice that he would be required to impose a sentence on the appellant. In the short time that was available to him, he had to absorb the facts that were read to him, watch CCTV video footage, and give consideration to the materials and submissions relied on by the appellant.
After carefully considering the merits of the ground of appeal, and counsel's helpful submissions, I have concluded that the sentences that were imposed on the appellant were manifestly excessive. In my view it was not reasonably open to sentence the appellant to an immediate term of imprisonment in respect of either offence.
There is no doubt that the offences were serious. The act of spitting was vile and degrading and was done to escape the security officers who were just doing their job. Further, although he bit the victim while he was being forcefully restrained on the ground, that was also a disgraceful act that carried a risk of serious injury. The appellant is fortunate that the victim's arm was protected by an article of his clothing. While the victims of the appellant's offending may not have been seriously injured, and there is no suggestion that they were actually at risk of contracting a transmissible disease, they would have anxiously waited for the results of their blood tests.
On the other hand, the appellant's acts (while clearly inappropriate) occurred on the spur of the moment, were not premeditated, and were not sustained, because he was quickly overpowered.
Further, when the appellant bit one of the security guards he was being forcefully restrained on the ground by five security guards, one of whom had his arm around the appellant's face and mouth. Although there is no excuse for the appellant's actions, the context in which he bit one of the guards does go some way to explain why he behaved in that way, and reduces the seriousness of that part of his overall offending behaviour.
Plainly, there was a need to impose a sentence that acted as a general deterrent, not only to discourage spitting and biting generally, but also to protect security guards who work to keep people and property safe at places such as the casino. Given that the appellant had previously committed offences of assault occasioning bodily harm there was also a need to impose a sentence that sent a message to the appellant that violence will not be tolerated.
To his credit the appellant pleaded guilty at the first available opportunity, and he was found to have shown some genuine remorse and insight. However, he was not entitled to be treated as a person who was otherwise of good character, nor could he be sentenced on the basis that these offences were isolated aberrations. Further, although he was a relatively young man, he was an adult and his age was not a mitigating factor.
Although the guidance afforded by comparable cases is flexible rather than rigid, Tottle J's review of cases in Medanovic demonstrates that where immediate terms of imprisonment were appropriately imposed for offences of common assault and assault occasioning bodily harm, the offences concerned were significantly more serious than those committed by the appellant.
This conclusion also emerges from a review of other cases in which sentences imposed for offences of common assault and assault occasioning bodily harm have been considered on appeal, namely, Gill v Warrener [2021] WASC 332, Walker v Jarvis [2021] WASC 182, Malpuss v Giuffre [2020] WASC 303, Bykerk v Director of Public Prosecutions (WA) [2022] WASC 451 and Miorada v The State of Western Australia [2022] WASCA 143. There is no need for me to dwell on those cases in any further detail because they are not comparable, but they do support a conclusion that terms of immediate imprisonment were not reasonably open in the circumstances of this case, having particular regard to the fact that the offences committed by the appellant:
(a)were not premeditated and were not part of sustained criminal conduct;
(b)did not result in the victims suffering any significant injuries;
(c)did not involve the use of any weapons; and
(d)were not committed in company.
In my view, having regard to all of the circumstances, including the place that the appellant's offending occupies on the scale of seriousness, the sentences imposed on the appellant were manifestly excessive. Ultimately, although the offences were serious, and deterrence was a significant factor, it was not reasonably open to reach the conclusion that the offending was of such seriousness that only sentences of immediate imprisonment could be justified, or that the protection of the community required it.[19]
[19] Sentencing Act 1995 (WA) s 6(4).
For these reasons I granted the appellant leave to appeal and allowed the appeal.
I have the material necessary to resentence the appellant.
The pre‑sentence report dated 12 May 2023 indicates that the appellant is a suitable and willing candidate for supervision in the community. The report's author notes that:
Mr Isaacs presents with appropriate insight into the harm he has caused the victims … [he] expressed shame at his offending and appeared motivated to address his poor emotional regulation skills and alcohol abuse through counselling and programs.
The report further notes that the appellant understands that he will be required to attend programs and counselling to address his treatment needs, and that he recognises and is willing to engage with his anger management issues. I have been informed that the appellant has now obtained a referral to a psychologist in order to be provided with counselling to deal with his issues relating to anger management and anxiety. It is to his credit that he has taken this step.
In all of the circumstances, including the appellant's early pleas of guilty and the fact that the appellant spent approximately 133 days in custody pending the hearing of his appeal, I am of the view that the appropriate sentence for each of the offences is an intensive supervision order for a period of 18 months.
Given the circumstances of the appellant's offending, as well as what is set out in the pre‑sentence report and the steps taken by the appellant to obtain counselling, I also impose a program requirement under s 73 of the Sentencing Act 1995 (WA). It is my expectation that any issues that may have contributed to the appellant's criminal behaviour will be addressed by appropriate orders made by a Community Corrections Officer under s 73(2). This is to ensure that the appellant is required to follow through with his apparent commitment to undergo counselling.
Orders
The orders I make are as follows:
(a)Leave to appeal is granted.
(b)The appeal is allowed.
(c)In respect of each offence, the sentence of imprisonment is varied by imposing an intensive supervision order, with a program requirement, for a period of 18 months.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Judge
16 MAY 2023
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