Mafi v Wilshire
[2009] WASC 375
•11 DECEMBER 2009
MAFI -v- WILSHIRE [2009] WASC 375
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 375 | |
| Case No: | SJA:1119/2009 | 26 NOVEMBER 2009 | |
| Coram: | McKECHNIE J | 11/12/09 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence set aside and sentence of 12 months' imprisonment suspended for 9 months substituted | ||
| B | |||
| PDF Version |
| Parties: | DAVID FOLAU TA'OFI MAFI TRISTAN JOHN WILSHIRE |
Catchwords: | Criminal law Sentence Assault occasioning bodily harm Failure to take into account mitigatory factors and plea of guilty |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
TRISTAN JOHN WILSHIRE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE W G TARR
Citation : PE 37684 of 2009
Catchwords:
Criminal law - Sentence - Assault occasioning bodily harm - Failure to take into account mitigatory factors and plea of guilty
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Sentence set aside and sentence of 12 months' imprisonment suspended for 9 months substituted
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters & Mr D K Walls
Respondent : Mr S E Stocks
Solicitors:
Appellant : David Walls & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
- McKECHNIE J:
What led to this appeal
A cowardly attack
1 On 4 January 2009 a very drunk Mr Mafi was outside the Liquid Night Club in Rockingham. He had had a bad night, finding out his partner of two years had been cheating on him. When he went outside to seek counsel from his friends, they started joking and throwing his wallet around until it went missing. A 19-year-old man, soon to be the victim, was outside the night club minding his own business. Mr Mafi went up to him, slapped him hard to the left side of his face and followed through with a punch to the right side of his face causing the victim to fall down. Mr Mafi then kicked him hard in the stomach. Mr Mafi asked the victim if he had any money and, in fear of his safety and trying to distract Mr Mafi, the victim said 'Alright'. The victim got to his feet, then ran across the road in an attempt to seek help from bouncers at the night club. They were no use. Mr Mafi chased and caught the victim, and struck him with an open hand again causing him to fall to the ground. He gave the victim more kicks to the stomach before walking away.
2 The victim was helped up and taken to hospital where he spent three days. He suffered a lacerated spleen and kidney. In an impact statement read to the magistrate, the victim said that he urinated blood for 20 days following the assault. While hospitalised he was unable to eat solids. When he returned home he experienced difficulties eating and was bedridden for approximately two weeks. Emergency care was required on 12 January 2009 due to ongoing issues with kidney trauma.
The court proceedings
3 Despite offering to plead guilty to assault occasioning bodily harm, Mr Mafi was charged with more serious offences and it was not until 24 September 2009 that the matter was resolved by a plea of guilty to assault occasioning bodily harm. He was sentenced to a term of 15 months' imprisonment to be served immediately and appeals against that sentence.
The issues
• Did the magistrate wrongly take judicial notice of the increased risk to the victim?
Yes, but it does not matter.
(Page 4)
- • Was an unsuspended sentence of 15 months wrong?
Yes.
4 In his impact statement the victim said:
I now face increased risk of diabetes, kidney failure and other medical issues later on in life.
5 The magistrate picked up on this:
As the victim has said, and I can take judicial notice of, it may well be that these injuries will lead to other problems in the future including, as he said, diabetes and other problems which may result from the injuries to his kidney.
6 The victim's statement was not accompanied by a medical report so it was no more than a lay opinion and therefore not probative. The medical effects of impact to spleen or kidney are not so well known that judicial notice can be taken of them. The magistrate was wrong to take account of them but the error is of no moment.
An unsuspended sentence of 15 months was wrong
7 By any measure this was a bad assault. It was aggravated because the victim was pursued after he tried to get away. He was kicked repeatedly, a cowardly action. The magistrate was correct in saying that there was a need for general deterrence:
People out there need to know that there is a risk of imprisonment if they get involved in this sort of activity.
A misunderstanding about a previous assault
8 The magistrate was innocently misled in relation to an aspect of Mr Mafi's previous conviction for assault, that against a 15-year-old girl in December 2006
9 The facts to which Mr Mafi pleaded guilty in 2007 did not include an assertion made in these proceedings that he had grabbed the 15-year-old complainant by the throat. She was a 15-year-old female who suffered pain and discomfort. As with the victim in this offence, she was entirely innocent. Although the magistrate did have a mistaken view of one aspect of that assault, I do not think that it affected the sentence to any degree.
(Page 5)
The plea of guilty
10 The magistrate did not mention the plea of guilty or specifically any reduction in sentence because of the early offer to plead guilty. This was an error.
Other matters of mitigation
11 The only reference to other matters of mitigation was:
I'm told that the accused comes from a good family and I have heard references that he is well thought of, but none of them mention, as I can see, the assault.
12 But there were powerful matters of mitigation. Mr Mafi is 21 and still young. His employer stated that the offence was out of character and that he had witnessed a considerable change to his behaviour. Mr Mafi had reportedly cut back significantly on his alcohol consumption and returned to his church. The pre-sentence report writer noted that he appears to have a large support network consisting of family and friends within the community and has implemented positive changes since committing the offence.
13 The maximum penalty the magistrate could impose was a sentence of 16 months' imprisonment (having regard to the summary penalty and the transitional provisions of the Sentencing Act 2003 and 2009). A sentence of 15 months does not take sufficient account of the mitigating factors I have just outlined or the plea of guilty. The sentence is excessive and requires correction.
Re-sentence
14 A sentence of imprisonment is called for. This was a cowardly unprovoked attack on a young man causing serious consequences. Through his work as a bouncer, Mr Mafi ought to have known better than others the consequences of anger and alcohol. As the magistrate noted, there is a need for sentences of general deterrence.
15 The magistrate considered and rejected the option of a suspended sentence. Had the magistrate expressly referred to the matters of mitigation and the plea of guilty then there could be no complaint about his decision to impose a sentence of immediate imprisonment.
(Page 6)
16 In re-sentencing I take account of these matters and also the fact that Mr Mafi has been in prison for more than two months. He should have got the message by now.
17 I set aside the sentence of 15 months' imprisonment and substitute a sentence of 12 months' imprisonment suspended for a period of 9 months.
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