Kjellgren v Cameron

[2012] WASC 80

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   KJELLGREN -v- CAMERON [2012] WASC 80

CORAM:   McKECHNIE J

HEARD:   1 MARCH 2012

DELIVERED          :   1 MARCH 2012

FILE NO/S:   SJA 1121 of 2011

BETWEEN:   DIRK GRANT KJELLGREN

Appellant

AND

MATTHEW McGREGOR CAMERON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T J McINTYRE

File No  :MH 3651 of 2011, MH 3652 of 2011

Catchwords:

Criminal law and procedure - Sentence assault occasioning bodily harm - Domestic violence - Range of sentences commonly imposed

Legislation:

Nil

Result:

Appeal allowed
Sentence of 2 years' imprisonment set aside
Sentence of 15 months' imprisonment imposed

Category:    B

Representation:

Counsel:

Appellant:     Mr A C McIntosh

Respondent:     Mr J Newton-Palmer

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Iveson v The State of Western Australia [2005] WASCA 25

Mead v Couper [2000] WASCA 345

Messiha v Plaucs [2012] WASC 63

Miller v The Queen [2004] WASCA 84

The State of Western Australia v Anderson [2004] WASCA 157

McKECHNIE J: 

How this matter comes to court

1. Mr Kjellgren and Ms Fuller had been living together in a relationship for about four months.  They were living together in a caravan park at Dawesville.  On the evening of 14 July 2011, as a result of a domestic dispute, Mr Kjellgren was arrested and taken to Mandurah Police Station; unsurprisingly he was drunk.  He was given an order not to approach the caravan park and released at about 4.30 am.

2. Mr Kjellgren walked back to the caravan park, some considerable distance.  When he arrived, he knocked on the door of Mrs Fuller's caravan. He was shouting at her.  On discovering that she had tossed his possessions outside, he called her a dog, threatened her and then punched her to the face a couple of times.  She backed into the kitchen and he hit her again, knocking her to the ground.

3. When she tried to get out, he began to punch her and stopped her from leaving.  Eventually she escaped.  As a result of the assault, she suffered a 2 ‑ 3 cm laceration of her left cheek below her eye which required stitches, swelling and bruising to the head and face; a mildly depressed fracture of the anterior wall of the left maxillary sinus, and an undisplaced fractured left nasal bone.  Put another way, he gave her a broken nose.

4. Mr Kjellgren was charged with breach of the police order and aggravated assault occasioning bodily harm.  On the morning of trial he changed his plea to guilty.  Before sentencing Mr Kjellgren on 25 October 2011, the magistrate had sought a pre‑sentence report.  He fined Mr Kjellgren for breach of the police order and sentenced him to 2 years' imprisonment for aggravated assault occasioning bodily harm, making a parole eligibility order.

5. Mr Kjellgren complains about the length of the term of imprisonment.

The amended grounds of appeal 

Ground 1

The sentence imposed for the offence of aggravated assault occasioning bodily harm was in all the circumstances manifestly excessive;

Particulars of circumstances;

1.1the plea of guilty;

1.2the criminality involved;

1.3sentences imposed involved in broadly comparable cases.

Ground 1.1 the plea of guilty

1. The jurisdictional limit is 3 years.  The plea was not at the earliest opportunity.  Indeed, it was not early at all.  Nevertheless, the magistrate said that he would take it into account and acknowledged that the plea avoided the victim going through the process of giving evidence.  That deserved the appropriate level of credit.  There is no substance to this ground.

Ground 1.2 the criminality involved

1. This was a serious offence.  There are a myriad of authorities as to the seriousness with which courts view assaults in domestic situations.  The magistrate described the circumstances as follows: 

   So in circumstances where you are in a relationship, which presumably involves emotional support and a level of feeling for the person and that sort of thing, you were involved in what can only be described as a brutal and sustained bashing of a defenceless woman.

   He said that the sentence fits towards the top of the range.  Especially in circumstances where there is a very deliberate breach of an order, followed by a significant bashing, the sentence must reflect strong general as well as personal deterrence.

2. This sort of violence to women simply cannot be condoned and a sentence of immediate imprisonment was an appropriate sentence.  Counsel for Mr Kjellgren does not argue to the contrary.

Ground 1.3 sentences imposed in broadly comparable cases

1. This is not a ground of appeal as such.  The ground of appeal is that the sentence is manifestly excessive.  Whether or not that is so is a conclusion.  A survey of comparable sentences may expose a range of sentences commonly imposed for similar crimes so that a sentence beyond the range may be more readily regarded as a manifest error but not necessarily so.

2. There is always scope for judicial discretion and the need to tailor a sentence to the particular circumstances of the offence and offender.  A comparable range can only ever be a guide to excess, not a determinant.

3. With these cautions in mind, I approached the task of comparison.  Fortunately, that task is made infinitely easier because it has recently been undertaken by Hall J in Messiha v Plaucs [2012] WASC 63. From [44] on, Hall J examined and analysed a series of cases before concluding that a sentence of 18 months for five offences, including aggravated common assault, threat to injure and three counts of aggravated assault occasioning bodily harm, did not properly reflect the overall criminality which was better reflected as a sentence of 15 months' imprisonment taking into account certain personal factors that had occurred since sentence.

4. In the present case, the respondent has referred to a number of decisions of the Court of Appeal and sentences of the District Court.  These should be approached with some caution, recognising the higher maximum penalty available to a District Court judge.

5. In Iveson v The State of Western Australia [2005] WASCA 25, the appellant pleaded guilty to two counts of assault occasioning bodily harm on the offender's de facto partner. Leave to appeal against a total sentence of 4 years' imprisonment was refused.

6. In The State of Western Australia v Anderson [2004] WASCA 157, the court allowed an appeal in respect of one count of assault occasioning bodily harm on the de facto partner of the offender and substituted an effective sentence of 2 years' imprisonment.

7. In Miller v The Queen [2004] WASCA 84, the Court of Appeal allowed the appeal and substituted a sentence of 6 years and 8 months' imprisonment to be served cumulatively on sentences being served for sexual penetration and assault occasioning bodily harm. Although the appeal was allowed on other grounds, the court viewed the sentence of 3 years' imprisonment for the assault offence as not excessive.

8. In Mead v Couper [2000] WASCA 345 an appeal from a Magistrates Court, not referred to by Hall J in Messiha v Plaucs, a sentence of 18 months' imprisonment for violence on a de facto wife was not altered.

Conclusion

1. So I come to the resolution of the question of whether this sentence is manifestly excessive.  I am mindful that sentencing is a difficult judicial exercise and allowance should be made for the judicial discretion.  Reasonable judicial officers may come to different views about an appropriate sentence.

2. An appeal court can only interfere if the sentence actually imposed is in all the circumstances manifestly excessive.  Using comparable sentences as a guide, and considering the circumstances of this offending, I have concluded that a sentence of 2 years' imprisonment is in all the circumstances a manifestly excessive sentence.

3. That said, the circumstances are nevertheless very serious.  Ms Fuller was significantly injured.  Mr Kjellgren's criminal background is poor and includes offences of violence, although he has never before been imprisoned.  As I have said, the principles of general and specific deterrence must also find their way into a proper sentence.

4. Taking all those matters into consideration, I set aside the sentence of 2 years' imprisonment and impose in lieu a sentence of 15 months' imprisonment with parole eligibility, backdated to 15 July 2011.