Littlely v The State of Western Australia - [2022] WASCA 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LITTLELY -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 102
CORAM:   BUSS P
MAZZA JA

HEARD:   1 APRIL 2022
DELIVERED          :   8 AUGUST 2022
FILE NO/S:   CACR 10 of 2022
BETWEEN:   BRAEDEN JOHN LITTLELY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   GER 44 of 2021

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of unlawfully doing grievous bodily harm - Sentence of 18 months' immediate imprisonment - Whether the primary judge erred in relation to her consideration of previous sentencing decisions of this court - Whether the primary judge erred in making findings about the force of the punch which caused the grievous bodily harm - Whether the sentence was manifestly excessive

Legislation:

Criminal Code (WA), s 297(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr P G Giudice
Respondent	:	No Appearance

Solicitors:

Appellant	:	George Giudice Law Chambers
Respondent	:	Director of Public Prosecutions (WA)

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

Allen v The State of Western Australia [2017] WASCA 203
Baker v The State of Western Australia [2018] WASCA 15
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bowe v The State of Western Australia [2017] WASCA 166
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Hornell v The State of Western Australia [2021] WASCA 137
Kere Kere v The State of Western Australia [2016] WASCA 189
Lee v The State of Western Australia [2018] WASCA 156
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Mercanti v The State of Western Australia [2009] WASCA 109
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Peake v The State of Western Australia [2015] WASCA 239
Pedersen v The State of Western Australia [2010] WASCA 175
Reynolds v The State of Western Australia [2017] WASCA 214
The State of Western Australia v Babakarkhil [2022] WASCA 59
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Mackey [2017] WASCA 204
The State of Western Australia v Saleh [2020] WASCA 205
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Winmar v The State of Western Australia [2016] WASCA 62

JUDGMENT OF THE COURT:

The appellant has applied for leave to appeal against sentence.
The appellant was convicted, after a trial before Gillan DCJ and a jury, of unlawfully doing grievous bodily harm to Dustin Peter Free, contrary to s 297(1) of the Criminal Code (WA) (the Code).
On 11 February 2022, the trial judge sentenced the appellant to 18 months' immediate imprisonment. The sentence was backdated to 4 February 2022. A parole eligibility order was made.
The appellant relies upon three grounds of appeal.
Ground 1 alleges, in essence, that the trial judge erred in considering previous sentencing decisions of this court by 'not taking into account or not placing sufficient weight upon the differences between those cases and the case of the appellant'.
Ground 2 alleges, in essence, that her Honour erred in making findings about 'the force of the punch giving rise to the grievous bodily harm'.
Ground 3 alleges, in essence, that the sentence of 18 months' immediate imprisonment was manifestly excessive.
In our opinion, none of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending, as found by the trial judge, were as follows.
The appellant had been married to Tenika Littlely. However, they separated in about January 2020 following the breakdown of their marriage.
On 12 December 2020, at about 9.00 pm, Mr Free was at the Geraldton Hotel with Ms Littlely (who was, at that time, his girlfriend) and some other friends.
Later that evening, at about 11.00 pm, Mr Free and his friends were in the beer garden area of the hotel. The appellant was also in that area. Just after 11.00 pm, Mr Free and his friend, Jake Keleher, went to the toilet area of the hotel. After they left the toilet area and while they were returning to their friends, Mr Free was punched to the side of his face. Mr Free did not see who had punched him. His evidence at the trial, which her Honour accepted, was that he did not know that the appellant was at the hotel on the night in question. Her Honour said that the punch was 'a strong and unexpected blow to him' (ts 256). Mr Keleher saw that it was the appellant who had thrown the punch. The incident was captured on CCTV cameras in the beer garden.
As a result of the punch, Mr Free's jaw was broken in two places. Mr Free went to the Geraldton Hospital for treatment. He was transferred to Sir Charles Gairdner Hospital in Perth. Mr Free underwent surgery for the fractures. Plates, screws and arch bars were inserted.
The trial judge found that an aggravating factor in the appellant's offending was that the assault was 'an unprovoked and unexpected attack with considerable force … which caused a considerable injury' (ts 256). Later in her remarks, her Honour said:
The attack was out of the blue, but I accept it was a single punch. But it must have been a forceful punch to have caused the injury that it did (ts 258).
The appellant was aged 30 years at the time of the offending and was 31 when sentenced. He and Ms Littlely have a 5‑year‑old son. The appellant had a close relationship with his son and had shared in his care since the appellant and Ms Littlely had separated. He has a reasonable working relationship with Ms Littlely.
The appellant completed year 12 at school. He has qualifications as a heavy-duty mechanic. The appellant has always been employed in the mining industry. He has a good work ethic.
The information before her Honour included a pre‑sentence report dated 8 February 2022 and a psychological report dated 21 December 2021 from Ms Leanne Pirrottina, a clinical psychologist. The appellant does not appear to have any physical health issues or any entrenched substance abuse problems. However, he has suffered from attention deficit hyperactivity disorder and anxiety and, after the breakdown of his marriage, from depression.
The appellant does not have a prior criminal record. The trial judge dealt with the appellant on the basis that he was of prior good character.
The information before her Honour also included letters of support and letters attesting to the appellant's good character. Her Honour accepted, on the basis of those letters, that the appellant was a hardworking man who had generally led a very law‑abiding life. The appellant has good relationships with his family and friends. They remain supportive of him.
The trial judge accepted that the appellant was at a very low risk of reoffending and that the offending in question occurred as a result of the appellant's loss of control. However, her Honour added that she could not accept that it was a 'one‑off loss of control because there had been some prior aggression between [the appellant] and Mr Free' (ts 258).
Her Honour said that Mr Free had a permanent residual disability. Mr Free cannot bite together correctly. Some food is difficult for him to eat. Mr Free has pain in his jaw. He experiences tingling in a nerve to the left of his lip and, as a consequence, he dribbles on occasions. He has a loss of sensation in the lip. That difficulty is ongoing and is likely to be permanent.
Nevertheless, the trial judge remarked that the appellant's offending was not the most serious offence of its kind. It did not involve the use of a weapon and it involved one punch only.
During the sentencing hearing, her Honour, the prosecutor and defence counsel referred to a number of previous decisions of this court concerning sentencing for the offence of unlawfully doing grievous bodily harm. In her sentencing remarks, her Honour did not refer specifically to any previous decisions. Her Honour said:
I've reviewed the authorities, including the ones I've already referred to [in debate with counsel]. There is no tariff in this and all offences need to be fixed by reference to their own circumstances. So any of the cases provide guidance only. But I do note that none of the cases to which I have been referred, require a term of suspended imprisonment. In my view, the term of imprisonment required for this offending is a period of 18 months (ts 259).
The trial judge, having decided that a term of imprisonment was required, gave consideration to whether the term of imprisonment could be suspended or conditionally suspended. However, her Honour formed the view that, although the appellant was not an ongoing risk to the community, his offending was too serious for the term of imprisonment to be suspended or conditionally suspended.

Ground 1: counsel for the appellant's submissions

Counsel for the appellant submitted that the trial judge erred in her consideration of previous sentencing decisions of this court by not taking into account or placing sufficient weight upon the differences between those cases and the appellant's case.
Counsel cited Hornell v The State of Western Australia.[1] Counsel noted that in Hornell this court dismissed an appeal by the appellant against a sentence of 2 years 6 months' immediate imprisonment for unlawfully doing grievous bodily harm. Counsel argued that the objective facts and circumstances of the offending in Hornell were more serious than in the present case and that the personal circumstances and antecedents of the offender in Hornell were worse than those of the appellant.
[1] Hornell v The State of Western Australia [2021] WASCA 137.

Ground 1: its merits

There is no substance in counsel for the appellant's assertion that the trial judge failed to take into account the differences between previous sentencing decisions of this court and the appellant's case. Her Honour observed, in effect, in her sentencing remarks that she had reviewed the authorities including the authorities to which she had referred in debate with counsel (ts 259). It is plain from that observation that her Honour had regard to relevant previous sentencing decisions of this court.
An alleged failure by a judge who has exercised a discretion to give any or sufficient weight to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet;[2] Dinsdale v The Queen;[3] Vagh v The State of Western Australia;[4] Pedersen v The State of Western Australia.[5] A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention. In the present case, the trial judge did not fail to exercise the discretion conferred on her Honour. The alleged weighting error is not an independent ground which justifies intervention by this court.
[2] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).
[3] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ).
[4] Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).
[5] Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing).
Counsel for the appellant's reliance upon Hornell, in the context of ground 1, is misplaced. A sentencing decision of this court in one case in which the offender's appeal is dismissed does not, of itself, constitute a sentencing range, reveal a sentencing pattern or establish manifest excess.
Ground 1 is without merit.

Ground 2: counsel for the appellant's submissions

Counsel for the appellant submitted that the trial judge was not entitled to find that the punch inflicted by the appellant upon Mr Free must have been 'a big punch' because of the injuries (ts 252) or 'must have been a forceful punch to have caused the injury that it did' (ts 258) or was 'a strong … blow' (ts 256), because there was neither medical evidence nor expert evidence as to the degree of force required to result in the injury suffered by Mr Free.
According to counsel, it was only open to her Honour to find that 'it was the position that the punch landed [in] which caused the nature of the injury'.
Counsel noted that in evidence the complainant said that when he was punched he 'stumbled a little bit' but 'kept [his] ground' (ts 36). The complainant also said that, after he was punched, he was sore but did not suspect a broken jaw until a medical practitioner diagnosed his injury (ts 37).

Ground 2: its merits

Counsel for the appellant's complaint about the trial judge's comment that the punch inflicted by the appellant upon Mr Free must have been 'a big punch' because of the injuries (ts 252) may be put to one side because that comment was made in the course of debate with defence counsel. The comment was not incorporated in and did not otherwise form part of her Honour's sentencing remarks.
There is no substance in counsel for the appellant's submission that the trial judge was not entitled to find, in essence, that the appellant had delivered 'a forceful punch' (ts 258) or 'a strong … blow' (ts 256). Her Honour was entitled to make those findings, having regard to Mr Free's evidence and Dr Marcus Tong's evidence at the trial and the nature and extent of the injuries Mr Free suffered.
Mr Free gave evidence that after being struck he 'stumbled a little bit', but 'kept [his] ground' (ts 36). The immediate effects of being struck were that Mr Free was 'sore', 'covered in blood' and 'throbbing' (ts 37). Dr Tong gave evidence that Mr Free suffered two separate fractures on his jawbone. One was an open fracture where 'the injury [had] penetrated both layers of the skin and … the fractured fragment [was] exposed to the environment' (ts 103).
That evidence combined with the fracture of Mr Free's jaw in two places was adequate to sustain her Honour's findings that the appellant had delivered a forceful punch or a strong blow.
Ground 2 is without merit.

Ground 3: counsel for the appellant's submissions

Counsel for the appellant submitted that the sentence of 18 months' immediate imprisonment was manifestly excessive. The term of imprisonment should have been suspended.
Counsel emphasised the following matters:
(a)the appellant was at a very low risk of reoffending;
(b)it was not the worst case of unlawfully doing grievous bodily harm;
(c)there was only one punch;
(d)there was no prolonged attack or attempt to continue assaulting Mr Free;
(e)the background circumstances to the incident were unusual;
(f)the appellant had spent five nights in custody;
(g)the appellant had good support in the community including by his family and friends;
(h)the appellant was employed and paid child support for his son;
(i)the appellant was a person of prior good character;
(j)at the time of the offending the appellant was suffering from attention deficit hyperactivity disorder, anxiety and depression which explained the offending;
(k)the appellant had no substance abuse problems;
(l)the offending was not planned or premeditated;
(m)the appellant complied with strict bail conditions for a lengthy period before he was tried and sentenced;
(n)the appellant was a good father, a hard‑working man and had repaired the relationship with Ms Littlely; and
(o)the appellant had taken positive steps towards rehabilitation.

Ground 3: its merits

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[6] The State of Western Australia v Doyle.[7]
[6] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[7] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[8]
[8] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[9]
[9] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.

Section 76 of the Sentencing Act provides, relevantly:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Fogg v The State of Western Australia.[10] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
[10] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).
The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.
We have considered numerous cases of offending against s 297(1) including Trompler v The State of Western Australia;[11] Mercanti v The State of Western Australia;[12] The State of Western Australia v Taylor;[13] Peake v The State of Western Australia;[14] Winmar v The State of Western Australia;[15] Kere Kere v The State of Western Australia;[16] Bowe v The State of Western Australia;[17] Allen v The State of Western Australia;[18] The State of Western Australia v Mackey;[19] Reynolds v The State of Western Australia;[20] Baker v The State of Western Australia;[21] Lee v The State of Western Australia;[22] The State of Western Australia v Saleh;[23] Hornell and The State of Western Australia v Babakarkhil.[24] It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
[11] Trompler v The State of Western Australia [2008] WASCA 265.
[12] Mercanti v The State of Western Australia [2009] WASCA 109.
[13] The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308.
[14] Peake v The State of Western Australia [2015] WASCA 239.
[15] Winmar v The State of Western Australia [2016] WASCA 62.
[16] Kere Kere v The State of Western Australia [2016] WASCA 189.
[17] Bowe v The State of Western Australia [2017] WASCA 166.
[18] Allen v The State of Western Australia [2017] WASCA 203.
[19] The State of Western Australia v Mackey [2017] WASCA 204.
[20] Reynolds v The State of Western Australia [2017] WASCA 214.
[21] Baker v The State of Western Australia [2018] WASCA 15.
[22] Lee v The State of Western Australia [2018] WASCA 156.
[23] The State of Western Australia v Saleh [2020] WASCA 205.
[24] The State of Western Australia v Babakarkhil [2022] WASCA 59.
In Taylor [35] ‑ [39], Buss JA made these remarks (McLure P and Mazza JA agreeing):
In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] ‑ [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
McLure JA made these comments in Trompler about the broad range of sentences (post‑transitional) for unlawfully doing grievous bodily harm:
'The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].'
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler, Wheeler JA observed:
'I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].'
In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of WesternAustralia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].
In the present case, after evaluating the sentence of 18 months' immediate imprisonment, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness, the appellant's personal circumstances and antecedents and all other mitigating factors, we are satisfied that it was reasonably open to the trial judge to conclude that it was inappropriate to suspend or conditionally suspend (wholly or partly) the sentence of imprisonment. Her Honour was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend (wholly or partly) the term of imprisonment. The type of sentence was not unreasonable or plainly unjust.
We are also satisfied that the length of the sentence of 18 months' immediate imprisonment was not manifestly excessive having regard to the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness, the appellant's personal circumstances and antecedents and all other mitigating factors.
In our opinion, the mitigating factors in the present case that were emphasised by counsel for the appellant were properly reflected in the length of the term of immediate imprisonment.
Ground 3 is without merit.

Conclusion

None of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
8 AUGUST 2022