Kennedy v The State of Western Australia - [2017] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: KENNEDY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 156

CORAM: HALL J

HEARD: 29 MAY 2017

DELIVERED : 29 MAY 2017

PUBLISHED : 8 JUNE 2017

FILE NO/S: SJA 1100 of 2016

BETWEEN: TOM CHRIS KENNEDY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE HEATH
File No  :PE 43559 of 2016, PE 43560 of 2016

Catchwords:

Criminal law - Appeal against sentence - Unlawfully doing an act likely to endanger safety - Section 304 Criminal Code (WA) - Assaults - No injuries caused - Total aggregate sentence of 12 months' imprisonment - Whether manifestly excessive - Whether suspended sentence appropriate

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Mr T Percy QC
Respondent: Ms K C Cook

Solicitors:

Appellant: Youth Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
The Queen v Faithfull [2004] WASCA 39
HALL J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

This is an appeal against sentence.
On 7 November 2016, the appellant was sentenced in the Magistrates Court to a total effective sentence of 12 months' imprisonment. That sentence comprised two sentences of 6 months' imprisonment ordered to be served cumulatively for two offences of unlawfully doing an act as a result of which the life, health or safety of another person was or was likely to be endangered contrary to s 304(1)(b) of the Criminal Code (WA).
The appellant sought bail pending the hearing of the appeal. That application was granted and the appellant was released on bail on 7 February 2016 after serving approximately 3 months of the sentence.
There is one ground of appeal. In effect, it asserts that the individual sentences were manifestly excessive and that the appropriate disposition was a suspended sentence. In written submissions it has also been asserted that the magistrate erred by imposing cumulative sentences. That is a different complaint, one that relies upon the first limb of the totality principle.

The facts

The facts were not disputed.
In the early hours of Sunday, 1 March 2015 the appellant and a number of his friends were present at a karaoke lounge in Northbridge. One of those friends was R. R and his girlfriend left the lounge and walked towards a café on the corner of James and William Streets. They passed close to a group of young men that included the complainant, Leigh O'Connor. There was a verbal exchange that apparently upset R, who a short time later called his brother, P, who was still at the lounge. It is not known what R said in that call, and it is not alleged that the appellant was aware of what was said. However, the call caused P to leave the lounge and rush towards the café with a beer bottle in his hand.
A short time later the others, including the appellant, left the lounge. Only one of them, not the appellant, made any effort to catch up with P. The appellant and, relevantly, three other friends made their way more slowly along the street. Meanwhile, outside the café there was a confrontation between the brothers, joined by one friend, and the group of which Mr O'Connor was a member.
The violence was instigated by the R group, and they used weapons, inflicting serious injuries on three people, including Mr O'Connor. It was not alleged that the appellant was a participant in this conduct, or that he was aware of any intention to commit the assaults or the use of weapons. Further, the appellant was some distance away, around a corner, when this occurred, and it is not suggested that he or his companions could see it.
When the appellant and his companions did reach the scene, Mr O'Connor was on the ground in William Street, being assaulted by R. The appellant and two others then joined in, with the appellant repeatedly kicking Mr O'Connor whilst he was on the ground. This continued for about seven seconds before Mr O'Connor was able to get to his feet and run away towards the café. This conduct by the appellant relates to the first charge.
The appellant and others in his group then approached Mr O'Connor in a threatening way, who put up his arms in a submissive gesture. He then retreated into the café but was followed by the attacking group. Whilst this was occurring, another member of Mr O'Connor's group was being assaulted outside, though the appellant was not involved in that assault. A deep laceration to Mr O'Connor's neck was visible and was pointed out by one of his friends. It is not alleged that this injury was caused by the appellant.
R and others in his group were blocking the exit and making threatening gestures. R then walked towards Mr O'Connor and pushed him hard, causing him to stumble. In response, Mr O'Connor picked up a chair and threw it towards the attacking group. This caused one of the attacking group to rush at Mr O'Connor and knock him to the ground. Others then joined in assaulting him, including the appellant, who kicked and punched Mr O'Connor whilst he was on the ground. This assault lasted in total about 20 seconds. This conduct by the appellant relates to the second charge.
Shortly after this there was another assault on one of Mr O'Connor's friends, but the appellant is not alleged to be part of that. Soon after, all of the attacking group left the scene. None of them made any attempt to aid the injured men or clean up the mess caused in the café.
The offenders were later identified, arrested and charged. Seven people in the attacking group were charged. The brothers and the friend who had assisted them in the initial armed attack were charged with more serious indictable offences and are yet to be dealt with in the District Court. The appellant and the three others were charged in relation to the subsequent assaults. He and these three co‑offenders all pleaded guilty to the charges against them and were dealt with in the Magistrates Court.
There were four incidents of group assaults involving the appellant and the three others dealt with in the Magistrates Court. Of these the appellant was charged in respect of two. Others faced two, three and four charges, depending on their own level of involvement. No issue of parity is raised, so it is unnecessary to say more about the co‑offenders and the sentences they received. There was a delay in resolving the matter and that appears to be because there were negotiations about the appropriate charges. These were finally resolved and the appellant entered pleas of guilty to both charges on 7 November 2016.

Personal circumstances

As to the appellant's personal circumstances, he was aged 22 at the time of the offending and 24 by the time he came to be sentenced. He is from a supportive family and has worked for a charity and in the music industry. He has no criminal record whatsoever. There was a reference from a parish priest who attested to his good character and his contribution to the parish. He is a musician who plays regularly at church services. By all accounts the conduct was very much out of character.
A pre‑sentence report was obtained, which referred to him accepting responsibility for his offending, noted that he had not previously been supervised by the Department and recommending that if a non‑custodial option was considered appropriate, he would be suitable for community supervision.
The pre‑sentence report also noted that (at least at that stage) the appellant did not acknowledge the necessity for him to undertake counselling or a program to deal with excessive alcohol use. That is somewhat surprising, given that in accepting responsibility he suggested to the author of the pre‑sentence report that his level of intoxication at the time was at least partly to blame for his conduct. However, in submissions to the Chief Magistrate, counsel for the appellant said that he accepted alcohol as a contributing factor which he needed to address. Indeed it was said that he had, by that stage, taken steps to reduce his alcohol use and to distance himself from negative influences.

Sentencing submissions

The prosecutor, in sentencing submissions, said that this was a serious offence which justified a sentence of imprisonment but conceded that a sentence of suspended imprisonment was an appropriate option. Although a conditional suspended imprisonment sentence was not available to the magistrate, the prosecutor said that the same effect could be achieved by imposing an intensive supervision order on one charge and a standard suspended imprisonment order on the other.

Sentencing remarks

The Chief Magistrate made sentencing remarks in which he stressed the seriousness of the offending and referred to the different roles played by the various accused. His Honour referred to the need for general deterrence, particularly bearing in mind that this offending had occurred on a Sunday morning in a public place. He referred to the fact that there was no allegation that the appellant had inflicted any injury, but noted that the victim was outnumbered and vulnerable by the time he was attacked by the appellant. His Honour came to the conclusion that imprisonment was the appropriate option. He said that he had considered the possibility of a suspended sentence, but concluded that the offending was too serious to justify such an outcome.

Merits of this appeal

An appeal against sentence depends on finding error either express or implied. An appeal court can not merely substitute its own view of an appropriate sentence for that of the primary court. The question is not what sentence the appeal court would impose if it were the primary court, but whether the discretion of the primary court miscarried. That is, was it open in the proper exercise of that discretion for the primary court to impose the sentence that was imposed?
A claim that a sentence is manifestly excessive is a claim of implied error. Such a claim has to be assessed in light of the circumstances of the offending, the appellant's personal circumstances, the maximum penalties and the range of sentences customarily imposed for offences of this type. A sentence can be manifestly excessive because the wrong type of sentence was imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].
Section 39 of the Sentencing Act 1995 (WA) sets out a list of sentencing options in ascending order of seriousness. The court must not use a more serious option unless it is satisfied that it is not appropriate to use any less serious option. The most serious option is immediate imprisonment. Thus imprisonment is the sentence of last resort and cannot be imposed unless all other options have been found to be inappropriate. The immediately preceding options to immediate imprisonment are a conditional suspended imprisonment order and a suspended imprisonment order. Thus a court must be satisfied that those options are inappropriate before imposing immediate imprisonment. As noted earlier, a conditionally suspended imprisonment order was not an available option for the Chief Magistrate because the Magistrates Court (other than the Drug Court) is not a prescribed court pursuant to s 81 the Sentencing Act. However, an ordinary suspended imprisonment order was available.
In this case, the Chief Magistrate did expressly consider suspended imprisonment but rejected it. The question is, was he right to do so? See Cartwright v The State of Western Australia [2010] WASCA 4 [8].
The maximum penalty for a s 304 Criminal Code offence is 7 years' imprisonment. The summary conviction penalty is 3 years, but this is only the jurisdictional limit and the statutory maximum remains important as a reflection of the seriousness of this type of offence.
As to comparable sentences, I was referred to three cases involving the same offence, but it was accepted they were not comparable on their facts and provided no assistance for sentencing in this case. It was suggested that the offending here could be compared to an assault. Certainly it involved what, in essence, was an assault but there are obvious dangers in comparing these offences with other offences that do not carry the same maximum penalties. Ultimately, where there are no useful comparators, it is a question of determining the appropriate discretionary range in this case from first principles.
Turning to the question of seriousness of these offence, the following factors are relevant:
•Firstly, the events occurred quickly. Each assault was measured in a matter of seconds.
•Secondly, there was no planning, premeditation or forethought on the part of the appellant. In fact, he appeared to act without much thought at all, either for what he was doing or the possible consequences.
•Thirdly, no weapons were used by the appellant. He used his fists and feet. In that, his conduct can be contrasted with that of others in his group.
•Fourthly, there were multiple blows on a vulnerable victim, who was on the ground. Clearly this was cowardly conduct that was unprovoked.
•Fifthly, no injuries were caused by (or at least could be attributed to the actions of) the appellant. That may indicate the degree of force that was used by him.
•Sixthly, the offending occurred in company. That was probably the most significant aggravating factor. This was a group attack. Clearly, the victim and his friends were significantly outnumbered, a fact that would have been obvious to the appellant.
•Seventhly, this occurred in a public place, in Northbridge on a Sunday morning. Damage was caused to the café and this behaviour could potentially have caused fear to members of the public. In these circumstances, general deterrence was an important factor, as the magistrate recognised.
•Eighthly, the appellant left the scene along with his friends without checking the welfare of the victims, though it is possible that the appellant did not appreciate how badly hurt Mr O'Connor was.
The appellant's conduct was, in summary, much less serious than that of some of the others. It was others who started the attack, used weapons and inflicted serious injuries. The appellant joined in an attack that was already occurring. His contribution to it was significantly less than others, but nonetheless wrong and shameful.
As to the appellant's personal circumstances, they were very positive. He had in his favour the following factors:
(1)His youth. He was relatively young at the time, as I have mentioned.
(2)He has no criminal record whatsoever. He came before the court as a person of good character and that was an important factor that suggested that this was an aberration and that he was unlikely to re‑offend.
(3)He entered pleas of guilty to the charges and that was evidence of remorse and an acceptance of responsibility on his behalf.
(4)He had either ceased or reduced his drinking by the time he came to be sentenced. This was a relevant consideration in circumstances where excessive alcohol use was a contributing causative factor.
(5)He had a good character reference.
(6)He was a person who was engaged in pro‑social conduct. He had been gainfully employed with a charity for a period of years and since that time had been involved with a musical band.
(7)He had a supportive family who were willing to assist him in any efforts towards rehabilitation.
(8)He had, in any event, good prospects of rehabilitation.
In all of these circumstances, I have come to the conclusion that it was not open to exclude a suspended sentence. That was an appropriate option that reflected the seriousness of the offences and the need for general deterrence, but also the favourable personal circumstances of the appellant. Accordingly, the ground of appeal must succeed.
Since the issue of totality has been canvassed in the written submissions, I will refer to it briefly. There is reference to the so called 'one transaction rule'. That is not a rule at all. It is only a working principle: The Queen v Faithfull [2004] WASCA 39. The real question in any case is always whether the total effective sentence is proportionate to the total criminality. Here there were two incidents. They were separated by a pause. The appellant had the opportunity not to persist in the attack upon Mr O'Connor. There were separate violent attacks and in those circumstances it was open to impose cumulative sentences and, in my view, the total sentence imposed was not disproportionate.

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 3 months' imprisonment. I am told that that was a salutary experience for the appellant.
In my view a sentence of imprisonment of 6 months for each of the two offences was appropriate. However, in all the circumstances, those sentences should be suspended for a period of 12 months.
Notwithstanding the appellant's initial views to the pre‑sentence author that he did not need to address, by way of a program or counselling, his alcohol abuse, I am of a different view. If that was, as he says it was, a contributing factor to this offending conduct, then the safety of the public and his own interests will be served by him addressing that and ensuring that he does not abuse alcohol in the future. Therefore, I intend to impose a conditional suspended imprisonment order. Such an order was not open to the magistrate, but it is open to this court.
The time served can be taken into account by backdating the sentences in the event that the order is breached and the sentences have to be served.

Orders

The orders are as follows:
1.Leave to appeal granted.
2.Appeal allowed.
3.Sentences imposed in the Magistrates Court set aside.
4.The appellant be sentenced to 6 months' imprisonment on each count, those sentences to be conditionally suspended for 12 months from today. The conditions are to be a supervision condition and a program condition (with a direction that the programs include an appropriate alcohol program).