Leighton v Nelson

[2016] WASC 354

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   LEIGHTON -v- NELSON [2016] WASC 354

CORAM:   HALL J

HEARD:   24 OCTOBER 2016

DELIVERED          :   3 NOVEMBER 2016

FILE NO/S:   SJA 1064 of 2016

BETWEEN:   JASON GEOFFREY LEIGHTON

Appellant

AND

TEGAN JENNA NELSON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G A BENN

File No  :MI 5371 of 2016, MI 5372 of 2016

Catchwords:

Criminal law - Appeal against sentence - Aggravated common assault (x 2) - Whether sentences of immediate imprisonment manifestly excessive - Whether suspended sentences should have been imposed - Sentences made cumulative - Whether totality principle infringed

Legislation:

Nil

Result:

Extension of time granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed and sentences varied by making sentences concurrent

Category:    B

Representation:

Counsel:

Appellant:     Ms F A Cain

Respondent:     Mr J L Winton

Solicitors:

Appellant:     Felicity Cain Barrister & Solicitor

Respondent:     State Solicitor for Western Australia

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

Bropho v Hall [2015] WASC 50

Cartwright v The State of Western Australia [2010] WASCA 4

Corrigan v Kirkman [2011] WASC 254

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Eves v The State of Western Australia [2008] WASCA 7

Harrison v Hunter [2012] WASC 166

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Morgan v Kazandzis [2010] WASC 377

The Queen v Faithfull [2004] WASCA 39

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v McCarthy [2014] WASCA 210

1. HALL J: This is an appeal against sentence. On 28 July 2016 the appellant was sentenced to a total effective sentence of 12 months' imprisonment in respect of two charges of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA).

2. On 30 August 2016 the appellant filed an appeal notice seeking leave to appeal against the total aggregate sentence.  That notice was filed three days out of time.  An affidavit of the appellant's solicitor explained that there was a delay in obtaining instructions from the appellant and in making an application to the Legal Aid Commission.  The delay is not long and, in my view, an extension should be granted.

3. On 18 October 2016 the appellant filed an application for bail.  That application was supported by affidavits sworn by the appellant's solicitor, Ms Felicity Cain, and the appellant's wife, Mrs Sharon Leighton.  The application for bail was listed for hearing on 24 October 2016.  At that hearing the parties were in a position to make submissions as to the merits of the appeal.  Accordingly the appeal was heard at that time.  At the conclusion of the appeal I reserved my decision and the appellant did not press his application for bail.

The facts

1. The two charges of aggravated common assault arose out of the same incident, which occurred on the afternoon of 15 May 2016.  The appellant and his wife, Sharon Leighton, were at their home in Wooroloo.  They had both been drinking alcohol.  The appellant became aggravated when he discovered that his wife had eaten his dinner.  He punched the microwave oven several times and then went to the refrigerator and grabbed a butternut pumpkin which he threw at Mrs Leighton's head.

2. The appellant then approached Mrs Leighton, who was sitting on a couch in the living room, and grabbed a cup of cool drink from her hand.  He threw the cup at her head.  Mrs Leighton tried to remain calm and to ignore the appellant.  He then approached her from behind and grabbed her around the neck.  He tried to pull Mrs Leighton over the back of the couch and then started punching her to the back of her head.

3. Mrs Leighton's 19‑year‑old daughter, Renee Clement, and Ms Clement's boyfriend were at home in a different part of the house.  Ms Clement came into the living room and tried to drag the appellant off her mother and towards the door.  The appellant then grabbed Ms Clement and tried to punch her.  She put him in a headlock and he turned around, held her against the wall and hit her several times hard to the side of the head. 

4. Mrs Leighton was able to get off the couch at this point and assist Ms Clement, but as she did so, she was punched twice more by the appellant.  These punches caused Mrs Leighton to fall to the ground.  She then grabbed the appellant by his leg causing him and Ms Clement to also fall.  Mrs Leighton and Ms Clement continued to fight off the appellant's punches.  Mrs Leighton managed to hit the appellant to his nose with the palm of her hand.

5. The appellant got up from the ground and grabbed a high chair.  He tried to hit Mrs Leighton with the high chair.  At this point Ms Clement's partner came into the room and managed to pin the appellant to the ground.  Ms Clement then called the police.  When police attended the appellant, when asked for an explanation, said 'they ganged up on me'.

6. The appellant was arrested and charged with two counts of common assault in circumstances of aggravation.  The first count related to Mrs Leighton and the second count to Ms Clement.  The circumstance of aggravation in each case was that the appellant was in a domestic or family relationship with the victim.  Neither Mrs Leighton or Ms Clement sustained any injuries as a result of the assaults.

The pre‑sentence report

1. It would seem that the appellant was placed on police bail and first appeared in the Midland magistrates Court on 2 June 2016.  He remained on bail, with protective conditions, until the time he was sentenced.  He entered a plea of guilty to the charges on 23 June 2016 and a pre‑sentence report was ordered.  The report was specifically requested to address family and domestic violence treatment options.

2. The pre‑sentence report states that the appellant 'projected a reluctance to engage in the family violence regime, due to his work commitments'.  In these circumstances no referral for assessment to engage in a domestic violence programme was progressed.  When asked by the pre‑sentence author about the alleged facts the appellant 'failed to take ownership of his domestic violence behaviours' and referred to a number of financial and personal difficulties. 

3. The report states that the appellant portrayed his wife in a negative light and said that he had now moved on to another relationship.  When asked about the assault on his step‑daughter he said that he was the victim of an assault by others who were present at the time.  He denied being the perpetrator of physical violence towards his wife and portrayed himself as being the victim, notwithstanding a prior offence of a similar type in respect of the same victim in 2012.  He did acknowledge verbal arguments with his wife which he said centred on the need for her to get work.  He said that the relationship broke down when he was retrenched from his fly‑in fly‑out employment.

4. The report notes that the appellant described being in a poor financial position and that he needed financial counselling.  He was currently employed as a manager at a pet food business.  In regard to his health the appellant said that he has type 2 diabetes for which he takes oral medication.  He also said that he had had periods of depression for which he had been given medication but that he had ceased taking that medication prior to the present offences.  The appellant denied that he had any problematic use of alcohol or illicit drugs.  He said that he had 'dabbled' in cannabis use since his teenage years and planted several bushes for personal use, for which he had received a conviction in 2012.  Notwithstanding his claim that his alcohol use was not problematic, the appellant claimed to have little memory of the offences due to his level of intoxication at the time.

5. The pre‑sentence report states that the appellant 'exhibited no insight into the impact that his behaviour would have had on his ex‑wife, step‑daughter and the police'.  An assessment was made of the appellant's likelihood of further domestic violence and he was assessed as being a moderate to high imminent risk of violence towards his partner and a moderate imminent risk of violence towards others.  The report states that the appellant's 'lack of ownership of his domestic violence behaviours limits the exploration of the causal factors contributing to his behaviours'.  However, it was suggested that he would benefit from engagement in programmatic interventions or counselling to explore the causal factors and to address his domestic violence, including consequential thinking, emotional control, anger management and victim empathy.

Sentencing submissions

1. Defence counsel made submissions to the magistrate in regards to penalty.  The facts were admitted and it was submitted that the event was of short duration, although it was accepted it was clearly a violent offence.  In explanation it was submitted that on the day in question the appellant was feeling stressed and tired.  He had recently lost his job as a fly‑in fly‑out worker and as a result his salary was severely diminished.  The bank had foreclosed on the family home, forcing them to move out of the house.  He had spent most of that day moving.  He and his wife had also been left some $300,000 in debt to the bank.  The relationship between he and his wife was breaking down and the financial strain was intense.

2. Prior to these events the appellant had been prescribed antidepressants by his doctor, however he had stopped taking them.  His lawyer submitted that the appellant rarely drinks alcohol but that on the day in question he was very intoxicated.  It was submitted that, contrary to the impression created by the pre‑sentence report, he was very remorseful for his actions.  He suffered some injuries in the incident, which included two black eyes and a swollen and sore nose.

3. The appellant's personal circumstances are that he is 41 years old and that he and Mrs Leighton have two children together aged 9 and 4.  Mrs Leighton also has three adult children, of whom Ms Clement is one.  At the time of sentencing the appellant had obtained other work, and was working three to four days a week as a manager of a pet food retailer.

4. Defence counsel accepted that the pre‑sentence report was negative and said that she had spoken to the appellant about that.  He said that on the day of the interview for the pre‑sentence report he had only recently started his new job, which was extremely physically demanding.  He was exhausted at the time of the interview and not as communicative and open as he should have been.  Contrary to the impression that he gave at that time, it was said that the appellant was extremely remorseful, had taken full responsibility for his actions and accepted that this was behaviour that was not tolerated in the community.  It was also accepted that the appellant had a prior conviction for a similar offence in 2012 involving the same victim, Mrs Leighton. 

5. Defence counsel asked the magistrate to consider a conditional suspended imprisonment order.  The following exchange occurred:

   HIS HONOUR:  I don't have that option available to me in this court.

   CAIN, MS:  Well, I would ask then your Honour consider then just a straight ‑ ‑ ‑

   HIS HONOUR:  I can consider a pre‑sentence order.

   CAIN, MS:  Yes.  Yes.  I don't know whether your Honour would consider a suspended imprisonment order as is, or ‑ ‑ ‑

   HIS HONOUR:  I'm certainly looking at imprisonment.

   CAIN, MS:  Yes.

   HIS HONOUR:  And at this stage I'm not minded to suspending it [sic].  But I'm willing to hear you address me about that.

   CAIN, MS:  Yes.  Yes.  Well, your Honour, what I would say in relation to that is that the fact that he was drunk on that occasion is extremely ‑ is something that is out of character for him.  And he says that, basically, he very rarely drinks.  And your Honour has heard the explanation in terms of the antidepressants and the ‑ or not taking the antidepressant and being intoxicated.

   He says that alcohol isn't necessarily a difficulty for him at this stage.  But certainly, he was extremely intoxicated when this occurred.  And I note that the pre‑sentence report says that he does have a history of cannabis and alcohol abuse.  He says he has a couple of beers after work, but at this stage doesn't consider he has an alcohol problem.

   Certainly, your Honour, it appears that he has difficulty with anger management.  And it may well be that anger management programs may assist him in terms of a pre‑sentence order.  I would ask your Honour to consider a pre‑sentence order.  And it may well be - with his understanding now that he must be more engaged with community corrections and more open to talking to them, it may well be that there may be more alcohol‑underlying difficulties that may be more apparent.

   So I would ask that your Honour consider - if your Honour's saying, effectively, that it's either a pre‑sentence order [or] immediate imprisonment, I would ask that your Honour give him the benefit of at least assessing him for a pre‑sentence order, or putting him on a pre‑sentence order today ‑ ‑ ‑

   HIS HONOUR:  Yes.

   CAIN, MS:  ‑ ‑ ‑ and see how he goes on that and whether he's able to engage a little bit more with community corrections on the next occasion (ts 7 ‑ 8, 28 July 2016).

6. Incidentally, the magistrate's reference to a conditional suspended sentence not being an option open to him was correct: s 81 Sentencing Act 1995 (WA). Though in appropriate cases the same effect is sometimes achieved where there are two charges by imposing a suspended sentence on one and an intensive supervision order on the other. However, in this case the appellant submits that the magistrate should have imposed (non‑conditional) suspended sentences on both charges.

7. The prosecutor submitted that this was serious offending of its type, because of the persistence of the violence, the fact that two victims were involved and that the appellant had to be physically restrained to stop him from continuing with the assaults.  The fact that punches to both of the victims had been aimed at their heads was said to be a real concern.  The prosecutor said that there needed to be adequate punishment for this offence and that the community had an expectation of higher penalties for domestic violence.  In light of the previous offence there was said to be a need for specific deterrence.  Imprisonment was submitted as being the appropriate penalty. 

Sentencing remarks

1. The magistrate's sentencing remarks were relatively brief, so I will quote them in full:

   HIS HONOUR:  Stand up, thanks, Mr Leighton.  Firstly, I note your early pleas of guilty to these matters.  And you should be afforded the full discount of 25 per cent in regard to those pleas.  Secondly, I note in regard to your record, that there is a prior conviction for aggravated assault against your wife.  One of the victims here.  That does go back to 2012.  And there is no other domestic violence related matters on your record.

   Your record is not an aggravating factor.  You've already been punished for that matter.  And I note that you received a conditional release order in the sum of $1000 for that matter.  But it is relevant in the sense that it is concerning that now a few years later this violence towards your wife has again reoccurred.  And you no longer have the benefit of coming before the court with the mitigation of no prior offences of violence.

   This was a sustained, though relatively short lived series of very violent acts directed at your wife, starting with throwing things at her.  It's generally - conducted for the purpose of eliciting control and humiliation.  Throwing things at people in their head like that didn't cause any injuries.  I accept that.  But throwing a cup of Coke at someone's face or head isn't the sort of thing that you do to your partner who you're meant to behave towards with, at the very least, affection, and certainly some degree of courtesy and respect.

   But this was the exact opposite of that.  You've then followed that up with a violent assault against her.  Her step‑daughter had to intervene.  And a further violent assault against her until you were finally brought under control by Ms Clement's partner.  And, fortunately, neither of them - and it's remarkable - suffered injuries as a result of these matters.  I note that you received some degree of injury in regard to that series of events.

   In my view, these are serious instances of domestic violence.  And there needs to be penalties that are personal and general deterrent.  And having carefully considered all sentencing options I am ultimately of the view that the only appropriate sentence are sentences of imprisonment.  I will apply the principle of totality, reduce the sentences that I would have otherwise imposed, but they will be cumulative sentences.

   And I'm not, ultimately, of the view that the sentences, having carefully considered the matter, should be suspended.  Taking into account everything I've mentioned for the assault against Ms Leighton there will be a term of eight months imprisonment.  That will be the head sentence.  In regard to Ms Clement, a sentence of four months.  That will be cumulative.  Total of 12 months imprisonment with eligibility for consideration of parole after serving six months (ts 9 ‑ 10, 28 July 2016).

Grounds of appeal

1. The ground of appeal contained in the appeal notice is as follows:

   The sentence of immediate imprisonment was manifestly excessive when a suspended sentence was open in the circumstances.  In particular the learned sentencing Magistrate failed to consider the following factors in favour of a suspended sentence:

   (a)It was an incident precipitated by severe emotional and financial stress upon the Appellant which was being addressed by the Appellant at the time of sentence.

   (b)It was an isolated incident.  Although the Appellant had a prior conviction for a domestic violence incident four years earlier, that prior conviction was very much at the lower level of offending in that he had received a Conditional Release Order.

   (c)The Appellant had good prospects for rehabilitation - he was working and attempting to address the circumstances that led to the offending.

2. At the hearing of the appeal counsel for the appellant declined an invitation from the court to amend the grounds of appeal by adding a ground relating to the totality principle.  However, a ground in those terms was subsequently added without objection of the parties and both parties had an opportunity to make further submissions in respect of it.  The additional ground is in the following terms:

   The total effective sentence of 12 months' imprisonment breached the totality principle, in that by making the individual sentences cumulative, the aggregate sentence was disproportionate to the overall criminality involved in the offences.

Ground 1 - manifest excess and suspended sentence

1. A ground of appeal that alleges that a sentence was manifestly excessive asserts the existence of an implied error.  A sentence is manifestly excessive if it is unreasonable or plainly unjust.  To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standard of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies on the scale of seriousness of offences of the type and the personal circumstances of the offender.  A sentence may be manifestly excessive because the wrong type of sentence has been imposed:  Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].

2. Sentences must be commensurate with the seriousness of the offence: s 6(1) Sentencing Act 1995 (WA). The seriousness of the offence must be determined by taking into account the factors in s 6(2). Section 6(4) requires a court not to impose a sentence of imprisonment of any type unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Section 39(2) of the Act sets out the various sentencing options. Section 39(3) provides that a court must not use a sentencing option in s 39(2) unless it is inappropriate to use any less serious option. The effect of this is that imprisonment of any type cannot be imposed unless the seriousness of the offence is such that only imprisonment is justified or the protection of the community requires it. Further, a term of immediate imprisonment cannot be imposed unless the sentencer is satisfied that a suspended imprisonment order is inappropriate: Cartwright v The State of Western Australia [2010] WASCA 4 [8].

1. In determining whether a suspended imprisonment order can be imposed a sentencer must revisit all the circumstances relevant to the decision to impose the term of imprisonment:  Dinsdale [18], [26], [84], [85]. Rehabilitation is not the only factor which may justify the suspension of a sentence. A sentence should be suspended whenever all the circumstances make it appropriate to do so: The State of Western Australia v McCarthy [2014] WASCA 210 [56].

2. The maximum penalty for aggravated common assault is 3 years' imprisonment and a fine of $36,000.  In this case the circumstance of aggravation was that the appellant was in a family or domestic relationship with each of the victims.  As Mitchell J noted in Bropho v Hall [2015] WASC 50, offences of this nature generally involve an abuse of the trust one partner places in the other, often where the victim is in a vulnerable position by reason of the greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P noted in The State of Western Australia v Cheeseman [2011] WASCA 15 [3], the readiness of many victims to return to, or remain in, a relationship with an abusive perpetrator is a hallmark of domestic violence. Sentencing must therefore take into account the need to protect persons in that vulnerable position by the imposition of sentences that bear a proper relationship to the overall criminality, which have a deterrent effect and, in appropriate cases, remove the offender to a place where there is no opportunity to violently attack their partner again.

3. As to the seriousness of these offences, the following factors are relevant.  Although the events were of relatively short duration, they involved throwing things at the first victim, grabbing her neck, punching her head and attempting to hit her with a chair.  This reveals a determined and violent attack upon Mrs Leighton that could very easily have resulted in some injury to her.  There was no provocation for the offence and the appellant's anger seems to have been triggered by the mere fact that his wife had eaten his dinner.  The fact that the appellant was tired from moving house and feeling stressed regarding financial issues affords no justification for the assaults.  The conduct only ceased when the appellant was physically restrained.  He also assaulted his step‑daughter when she tried to intercede.  The offences took place in the home of the appellant and the victims.  The victims were entitled to feel safe in their home, particularly from a member of their family.  In my view these factors place these offences into a serious category for offences of this type.

4. As regards the personal circumstances of the appellant, he did not have the benefit of youth or of being a first offender.  His criminal record is not particularly long but, significantly, it does contain a prior offence of a similar type against the same victim.  The facts of that earlier offence are unknown.  It is suggested that it cannot have been a serious offence because the appellant was sentenced to a conditional release order on that occasion.  It is not possible to speculate in that regard.  What can be said is that the appellant does have a history of domestic violence in relation to his wife.  That makes personal deterrence a significant consideration.  That is particularly so given that he has denied the existence of any problem.

5. It was submitted that the appellant had good prospects of rehabilitation.  This was based on the fact that he had obtained new employment, had acknowledged responsibility for the offending and expressed remorse.  These latter two suggestions were not, however, well supported by the pre‑sentence report.  That report stated that the appellant was unwilling to participate in a domestic violence programme, showed limited insight into his behaviour and was at a significant risk of reoffending.

6. As regards comparable cases, the authorities dealing with offences of this type demonstrate that there is no established range of sentences.  There is a large variety of circumstances in which offences of this kind can be committed.  Care must be used in making comparisons to take into account the different types of assault, where the maximum penalty can be different.  The respondent referred to four cases which were said to afford some assistance. 

7. In Morgan v Kazandzis [2010] WASC 377, the appellant appealed against both conviction and sentence in respect of three offences, two of aggravated assault occasioning bodily harm and one of aggravated common assault. Sentences of 8 months and 15 months in respect of the aggravated assault occasioning bodily harm charges were upheld on appeal. In respect of the aggravated common assault conviction, the appellant was sentenced to 9 months' imprisonment to be served cumulatively on the other terms. The appellant in that case was 42 years of age and the victim of the relevant offence was a 15‑year‑old girl. The assault was committed by the appellant hitting the complainant in the chest with his shoulder knocking her over backwards and causing her to hit her head on the ground. She suffered no injury but the assault occurred in circumstances where there was a verbal altercation which was likely to have caused fear and intimidation. EM Heenan J found that the magistrate was justified in concluding that an immediate sentence of imprisonment was necessary to mark the seriousness of the offence. However, to impose such a sentence in addition to the period of 15 months which the appellant was already serving was found to infringe the principles of totality. On that ground his Honour allowed the appeal against sentence and ordered that 6 months of the 9‑month sentence should be concurrent on the earlier sentences thereby reducing the total effective sentence from 24 months to 18 months.

8. In Harrison v Hunter [2012] WASC 166, the appellant pleaded guilty to one charge of aggravated common assault and was sentenced to 8 months' immediate imprisonment. The assault occurred in the context of an argument regarding use of a computer. The appellant went into the kitchen where he saw the complainant standing next to their daughter's high chair holding their daughter in her arms. He approached the complainant and the argument continued. In the course of that argument the appellant hit the complainant once with the bottom of his closed fist striking her in the right forehead in a downward swinging motion. The complainant left the house and went to a neighbour's house. No injuries were caused. The appellant in that case was a relatively young man of 26 years of age and was the sole provider for his partner and their child. He had a criminal record, including two convictions for assault occasioning bodily harm and one conviction for common assault. The appellant's partner was not the victim of any of the previous assaults. On an appeal against the sentence on the ground that it was manifestly excessive, Martin CJ concluded that the term of imprisonment of 8 months was within the range open to the magistrate. However, his Honour noted that there were significant factors justifying suspension. These included that the appellant had entered an early plea of guilty, that a previous term of suspended imprisonment had been successful and that the appellant was continuing to live in a permanent relationship with the complainant. His Honour referred to the particular interest of the complainant and her child to the rehabilitation of the appellant in circumstances where she was cohabiting with him. The interests of the partner and child were said to be best served by a penalty which would create the most favourable opportunity for the appellant to develop insight. His Honour found that the magistrate erred by not concluding that a suspended term would reflect the most appropriate balance between the need to impose a sentence that was commensurate with the seriousness of the offence whilst providing the most favourable opportunity for rehabilitation. For those reasons the appeal was allowed and the sentence varied by suspending the term of 8 months for a period of 12 months.

9. In Corrigan v Kirkman [2011] WASC 254, the appellant pleaded guilty to 34 charges, one of which was an offence of aggravated common assault. A total effective term of 12 months' imprisonment was imposed which included a sentence of 8 months for the aggravated assault offence. Simmonds J concluded that a sentence of 8 months' immediate imprisonment was not outside the range of sound sentencing discretion. The circumstances of the offence were that the appellant (who was known to the victim) had followed the victim after she left her work shortly before 5.00 pm. He grabbed her handbag and she maintained her grip on it. He pulled on the handbag with enough force to cause her to fall on the ground hitting her head. He stood over the victim pulling on the strap while she screamed at him to go away arousing the attention of a passer‑by. The appellant committed the offence in circumstances where he was subject to a violence restraining order and protective bail conditions. In all the circumstances his Honour concluded that the sentence of 8 months was not manifestly excessive. A separate ground that dealt with totality was, however, allowed.

10. In Bropho v Hall, the appellant was sentenced to 15 months' imprisonment for one offence of aggravated assault and 2 months for breaching a protective bail condition which was ordered to be served cumulatively.  The circumstances of the assault offence were that the appellant and the victim were amongst a number of others celebrating a birthday party.  They had both been drinking alcohol and became more aggressive as the evening went on.  The victim spoke to the appellant about his behaviour towards one of her female friends.  The appellant took exception to this accusation and grabbed the victim by her T‑shirt causing scratches to the side of her neck.  They continued to shout at each other.  The appellant then punched the victim to the face causing bruising and swelling to her left eye.  The victim moved away and felt a further blow to the side of her head.  Mitchell J said that the facts represented a relatively serious example of the offence of common assault because of the circumstances of aggravation.  There were two circumstances of aggravation in this case.  They were that the appellant was in a family or domestic relationship with the victim and that children were present when the offence was committed.  Mitchell J concluded that a survey of other cases illustrated that a sentence of 15 months' immediate imprisonment would stand at the upper end of the range of sentences ordinary imposed for the offence of aggravated assault occasioning bodily harm.  The cases in which such a sentence had been imposed for that offence involved significantly greater levels of violence than was committed by the appellant in this case.  His Honour allowed the appeal and in resentencing noted the appellant's effort towards rehabilitation whilst in custody and the fact that by the time the appeal was determined, the appellant had spent just over five months in prison.  When those circumstances were taken into account, it could no longer be said that a term of immediate imprisonment was the only option, even if that was the case at the time of the original sentencing.  His Honour concluded that the appropriate disposition was a 6‑month intensive supervision order.

11. In my view, the sentences of 8 months and 4 months were open to the magistrate in the exercise of sentencing discretion.  It was submitted that the magistrate had failed to give proper consideration to whether to suspend the sentence, but I do not accept that that is so.  His Honour specifically stated that he did not consider that a suspended sentence was appropriate.  There was no need for him to go through all of the factors again in explaining why he had come to that conclusion.  There is no reason for thinking that he failed to take into account such factors as were favourable to the appellant.  As regards rehabilitation, as I have noted above, the pre‑sentence report was at odds with the submissions made in this regard.  In my view, it was open to the magistrate to come to the conclusion that suspending the sentence was not appropriate in all of the circumstances, including the seriousness of the offending and the equivocal information regarding remorse and rehabilitation.

Ground 2 - totality

1. The totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirely having regard to the circumstance of the case, including those referable to the offender personally:  Moody v French [2008] WASCA 67; (2008) 36 WAR 393.

2. Where offences are committed as part of a single transaction, concurrent sentences are often imposed.  However, the so‑called 'one transaction rule' is simply a guide to the exercise of sentencing discretion:  The Queen v Faithfull [2004] WASCA 39 and Eves v The State of Western Australia [2008] WASCA 7. Accordingly the test for whether a sentence should be made concurrent, cumulative or partially cumulative is whether an order in those terms is necessitated because the aggregate sentence would otherwise be disproportionate to the total offending.

3. In this case the two assaults occurred as part of a single incident.  The second assault on the step‑daughter occurred because she sought to intervene.  There is no suggestion that the appellant would have assaulted his step‑daughter but for her intervention.  That does not excuse his conduct but it does place that conduct into a proper context. 

4. The magistrate referred to the totality principle and said that he had taken it into account in reducing the sentences that he would otherwise have imposed.  This seems to suggest that his starting point for the sentences for each offence were higher than those he imposed.  This is one way of ensuring that the aggregate sentencing is not unjust.  However, the totality principle is focused on the total effective sentence.  It will not always be satisfied by simply reducing the sentences for individual offences.  It is always necessary to have regard to the aggregate sentence and consider whether it is proportionate, notwithstanding any other reductions made.

5. In my view, the total effective sentence of 12 months was disproportionate to the total criminal conduct of the appellant.  Whilst the individual sentences were, as I have mentioned, within the appropriate discretionary range, making those sentences cumulative resulted in an aggregate sentence that was disproportionate.  For these reasons, ground 2 must be allowed.

Conclusion

1. For the reasons I have given, leave to appeal in respect of 1 is refused but leave to appeal is allowed in respect of ground 2 and the appeal is allowed.  This requires that consideration be given to resentencing the appellant.  Having regard to all of the factors, including those contained in the affidavits filed on the bail application, I have come to the conclusion that the individual sentences imposed by the magistrate at first instance were appropriate and that he was correct to conclude that a suspended sentence was inappropriate.  However, in my view, the sentences should have been ordered to be served concurrently.  Accordingly the sentences imposed by the magistrate will be affirmed other than to order that the sentence on count 2 be served concurrently with that on count 1.

Orders

1. The orders of the court are as follows:

   (1)extension of time to appeal granted;

   (2)leave to appeal on ground 1 refused;

   (3)leave to appeal on ground 2 granted;

   (4)appeal allowed and the sentences imposed by the magistrate be varied by ordering that the sentence on charge MI5372 of 2016 be served concurrently with the sentence on charge MI5371 of 2016 thereby reducing the total effective sentence to 8 months' imprisonment.