Mallard v Director of Public Prosecutions for Western Australia - [2023] WASC 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MALLARD -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 473
CORAM:   LUNDBERG J
HEARD:   6 DECEMBER 2023
DELIVERED          :   14 DECEMBER 2023
FILE NO/S:   SJA 1073 of 2023
BETWEEN:   BRENDAN PETER MALLARD
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   SJA 1073 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   PE 43107 of 2021, PE 11407 of 2022, PE 11408 of 2022, PE 44563 of 2022 and PE 57428 of 2022

Catchwords:

Criminal law - Appeal against sentence - Appellant sentenced for five offences committed on separate occasions - Aggravated unlawful assault, two common assaults and two firearm related offences

Criminal law - Appellant re-sentenced for original common assault offence following breach of community based order - Appellant re-sentenced on erroneous factual basis - Turns on own facts

Criminal law - Sentence for aggravated unlawful assault challenged as being manifestly excessive - Offence committed against person with whom the appellant was in a family relationship - Turns on own facts

Criminal law - Effective sentence challenged on basis of the first limb of the totality principle - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 10 and s 40
Criminal Code (WA), s 313
Firearms Act 1973 (WA), s 19(1)
Restraining Orders Act 1997 (WA), s 4(1)
Sentencing Act 1995 (WA), s 130

Result:

Extension of time granted
Additional evidence admitted on appeal
Leave to appeal on ground 1 and ground 1 is allowed
Appellant re-sentenced on common assault charge PE 43107/2021
Appeal otherwise dismissed

Category: B

Representation:

Counsel:

Appellant	:	D T Shackles and N R Sinton
Respondent	:	R P Arndt

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

Abassi v Ketteringham [2020] WASC 325
Bropho v Hall [2015] WASC 50
Clarke v Cantatore [2019] WASC 385
JTR v The State of Western Australia [2023] WASCA 131
Kabambi v The State of Western Australia [2019] WASCA 44
Leighton v Nelson [2016] WASC 354
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mogridge v The State of Western Australia [2016] WASCA 205
R v MAK [2006] NSWCCA 381
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v The State of Western Australia [2014] WASCA 238
Wungundin v Barndon [2013] WASC 28

Table of Contents

A. Introduction

B. The offences

Common assault ‑ October 2021

Firearms Act offences ‑ March 2022

Common assault ‑ August 2022

Aggravated common assault ‑ December 2023

C. Sentencing at first instance

D. Grounds of appeal

E. Legislative framework

F. Disposition ‑ ground 1

G. Disposition ‑ ground 2

Maximum penalty

Seriousness of the offence

Customary standards for sentencing

Personal circumstances

Conclusion

H. Disposition ‑ ground 3

I. Conclusion and orders

ATTACHMENT A Table of offences and sentences imposed

LUNDBERG J:

A. Introduction

These reasons relate to an appeal against the sentences imposed in the Magistrates Court on 26 July 2023 in respect of five separate offences. The most serious of the offences involved threatening and physical conduct by the appellant towards his de facto partner, late at night, whilst they were alone at their place of residence. Two of the offences involved violent conduct on the part of the appellant towards members of the public, both occurring at the same location, namely the Scarborough Sportsmen's Club. The remaining two offences involved unlicenced possession of a firearm and ammunition.
The total effective sentence imposed by the Learned Magistrate for the five offences was 17 months' imprisonment. The appellant was made eligible for parole.[1] The appellant challenges the sentence imposed in respect of one of the unlawful assaults on the basis he was sentenced on incorrect facts (ground 1).[2] This ground is conceded by the respondent, properly in my view.[3]
[1] ts 17, 26 July 2023.
[2] Appeal notice dated 30 August 2023, pg 2.
[3] Respondent's submissions [5].
Further, the appellant challenges the sentence imposed for the aggravated common assault on his de facto partner as being manifestly excessive (ground 2).[4]
[4] Appeal notice dated 30 August 2023, pg 2.
Finally, the appellant challenges the total effective sentence imposed on the basis that it infringed the first limb of the totality principle (ground 3).[5]
[5] Appeal notice dated 30 August 2023, pg 2.
There are two preliminary matters to address, which I will deal with at the outset.
First, the appellant required a brief extension of time to appeal (one week), which was not opposed. The delay was explained on affidavit. I considered the extension was appropriate and so granted the order at the hearing on 6 December 2023.[6]
[6] Criminal Appeals Act 2004 (WA) (CA Act), s 10(3).
Second, the appellant sought leave to admit further evidence on the appeal, namely the affidavit of his lawyer, Ms Natalie Sinton, which was affirmed on 9 November 2023 (Sinton Affidavit).[7] The affidavit attached the transcript of earlier proceedings in the Magistrates Court on 13 June 2022. As will be seen, this transcript was directly relevant to ground 1 of the appeal. The admission of the transcript was (properly) not opposed. Accordingly, I granted leave for the Sinton Affidavit to be adduced on the appeal.[8]
[7] Exhibit A.
[8] Pursuant to s 40(1)(e) CA Act.
Before addressing the grounds of the appeal, I will outline the circumstances of the offences and the proceedings below. For convenience, I have set out the offences and other associated details in the table in Attachment A to these reasons.

B. The offences

Common assault ‑ October 2021

In a chronological sense, the first offence in respect of which the appellant was sentenced was the common assault contrary to s 313(1)(b) of the Criminal Code 1913 (WA) (Code).[9] Section 313(1) provides as follows:
313. Common assault
(1) Any person who unlawfully assaults another is guilty of a simple offence and is liable —
(a) if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 3 years and a fine of $36 000; or
(b) in any other case, to imprisonment for 18 months and a fine of $18 000.
[9] Offence no. 1 in the table in Attachment A (PE 43107/2021).
The offence was committed on 15 October 2021. The appellant pleaded guilty to the assault. When originally sentenced for that offence, the presiding Magistrate imposed a community based order of 8 months' duration. That sentence was imposed on 13 June 2022.[10]
[10] Transcript of proceedings on 13 June 2022: Sinton Affidavit, Attachment NS1.
By reason of his subsequent offences, the appellant came to be re‑sentenced on 26 July 2023 for this common assault offence committed in 2021.[11] The presiding Magistrate on that occasion was not the original sentencing Magistrate. Unfortunately, and through what appears to be an innocent error, the Magistrate was incorrectly informed by the prosecutor and the appellant's then counsel (not being counsel on this appeal) as to the facts of that assault. Thus, the appellant was re‑sentenced on an erroneous factual basis. The court imposed a sentence of 1 months' imprisonment, to be served cumulatively.[12]
[11] Sentencing Act 1995 (WA), s 130(1)(b) (Sentencing Act).
[12] ts 17, 26 July 2023. This included a 25% discount for the plea of guilty, although there may have been an error in the calculation of the ultimate term once the discount was applied, but given the outcome of the appeal this error can be put to one side.
To put this in further context, the Magistrate was (incorrectly) informed that the common assault involved a fight on a train between the appellant and an off‑duty police officer, in which the appellant caused a disturbance and during an altercation, picked up the officer by the legs and threw him to the ground. The appellant then punched the officer in the face causing injuries to the eye and face of the officer.[13] These were not, however, the facts of the subject offence.
[13] ts 10 and 14, 26 July 2023.
Rather, the common assault committed in 2021 involved the appellant attending a Sportsmen's Club in Scarborough late at night. At some point, a disagreement amongst the appellant's family members ensued. A physical altercation subsequently occurred in the carpark at which the appellant punched the victim with a closed fist to the left side of his face. This resulted in soreness to the cheek and a small laceration to the inside of the victim's lip. Police officers arrived and arrested the appellant, during which the appellant continued to act in a generally unruly manner including by swearing at the officers and kicking the rear of the police vehicle.[14]
[14] ts 3 ‑ 4, 13 June 2022.
The erroneous factual basis for the sentencing on the common assault offence is the subject of ground 1 of this appeal.

Firearms Act offences ‑ March 2022

The next two offences, in a chronological sense, are the contraventions of the Firearms Act 1973 (WA) (Firearms Act). The offences were committed on 25 March 2022.[15] Section 19(1) provides:
[15] Offence no. 2 and offence no. 3 in the table in Attachment A (PE 11407/2022 and PE 11408/2022).
19.Licensing offences
(1)Any person who —
(a)sells, delivers or disposes of; or
(b)purchases or otherwise comes into possession of; or
(c)is in possession of,
any firearm, major firearm part or ammunition and is not the holder of a licence or permit under this Act entitling the person to do so commits a crime unless subsection (1ADA) or (1ae) or section 19AA provides otherwise or section 8 applies.
In brief terms, the appellant was found in possession of a Tikka T3 Hunter .223 rifle whilst not being the holder of a firearms licence or permit entitling him to do so. The appellant was also found in possession of two magazines and two boxes containing 121 rounds of .223 ammunition, whilst not being the holder of a firearm's licence or permit entitling him to do so.[16]
[16] ts 5 and 13 ‑ 14, 26 July 2023.
The rifle and the ammunition had been left at the appellant's house. The appellant maintained that he had decided to return the items to the owner, but was detained by the police in the process of doing so.
The contraventions of the Firearms Act are self‑evidently serious matters but were not the subject of focus in the course of the present appeal. In the context of the overall sentencing process, the Magistrate imposed a sentence of 1 month imprisonment for the first of these offences (to be served cumulatively on the other sentences) and a sentence of 1 month imprisonment to be served concurrently, in respect of the second offence under the Firearms Act. The Magistrate rightly observed during the course of the proceedings below that:
… this was not simply one round or one bullet. Essentially, it was a significant amount of ammunition, and a rifle within a rifle bag, that was taken from one place to another within the community.[17]

Common assault ‑ August 2022

[17] ts 14, 26 July 2023.

The third offence is a common assault which was committed on 9 August 2022.[18] This offence also took place at the Sportsmen's Club in Scarborough, late at night. The appellant was in the company of a male relative at the venue. The relative was asked to leave and a verbal disagreement ensued at which, having taken apparent offence to the way in which his relative was spoken to, he punched a committee member of the Sportsmen's Club to the face, with a closed fist, causing that person to suffer a cut lip.[19]
[18] Offence no. 4 in the table in Attachment A (PE 44563/2022).
[19] ts 6 and 13, 26 July 2023.
A melee continued after that point, requiring other club members to intervene and separate the participants until police officers arrived.
The appellant was sentenced to a term of imprisonment of 6 months, to be served cumulatively. There is no direct challenge to this sentence.

Aggravated common assault ‑ December 2023

The most serious of the offences for which the appellant was sentenced on 26 July 2023 was the aggravated unlawful assault committed on 23 December 2022.[20] The appellant pleaded guilty to this offence.
[20] Offence no. 5 in the table in Attachment A (PE 57428/2022).
The circumstance of aggravation was that the assault was committed on the appellant's intimate partner. This is a circumstance of aggravation by reason of paragraph (a) of the definition of 'circumstances of aggravation' in s 221(1) of the Code, namely that 'the offender is in a family relationship with the victim of the offence, other than where subsection (1A) applies'.[21] The term 'family relationship' is defined in s 221(2) of the Code to have the meaning given in the Restraining Orders Act 1997 (WA). Section 4(1) of the Restraining Orders Act 1997 (WA) defines 'family relationship' by reference to several types of relationships including a relationship between two persons 'who have, or had, an intimate personal relationship, or other relationship, with each other'.
[21] Section 221(1A) of the Code did not apply in the present circumstances.
The material facts, as read by the prosecutor at the sentencing hearing on 26 July 2023, were as following:
… the victim is 170 centimetres tall, slim build. The accused is 180 centimetres, solid build. At the time of the incident, they were in a de facto intimate family relationship. Between the hours of 10 pm on Thursday, 22 December and 1 am on Friday 23 December the accused and victim were at an address in Scarborough. The accused had been arguing with the victim all afternoon, causing the victim to become withdrawn and retreat to her bedroom. This made the accused more angry. The accused walked in to the bedroom and said to the victim:
What the eff is your problem?
The occurred then went to the kitchen and got a spoon, returning to the bathroom [sic - this was likely intended to be a reference to the bedroom, not the bathroom], pointing the spoon towards the victim whilst containing [sic - continuing] to yell at her. The victim felt fearful for her safety, however, the accused has grabbed her top and pushed her to the floor.[22]
[22] ts 4 ‑ 5, 26 July 2023.
The Learned Magistrate noted that the maximum penalties for the aggravated unlawful assault were three years' imprisonment or a fine of $36,000. The Magistrate approached the sentencing task by taking the view that the head sentence should be imposed in respect of this offence, and noted that the starting sentencing would be 12 months. Her Honour then discounted that sentence by 25% pursuant to s 9AA(2) of the Sentencing Act in light of the early plea of guilty, which reduced the sentence to 9 months.[23]
[23] ts 16 ‑ 17, 26 July 2023.

C. Sentencing at first instance

The Learned Magistrate approached the sentencing task on the basis that she was sentencing the appellant for five offences, rather than undertaking the task by sentencing in respect of four offences and then separately addressing the re‑sentencing task in respect of the common assault committed in 2021 (which had been committed whilst the appellant was subject to the community based order). So much is apparent from the express language employed the Magistrate in the sentencing process.[24]
[24] ts 12 ‑ 13, 26 July 2023.
The Magistrate then set out the facts upon which she proposed to sentence the appellant, noting that her task was to 'impose a penalty that's commensurate with the seriousness of the facts' and recognising the concession made by the appellant that the offences of violence are serious such that, 'taking into account the circumstances, taking into account your history and the need for general deterrence, we're at the point of imprisonment'.[25]
[25] ts 13, 26 July 2023.
The Magistrate had a pre‑sentence report before her which included an opinion that, given the appellant's performance on previous community based orders, the appellant was unsuitable in the future for community based dispositions. It was further noted that:
(a)there was a significant risk of the appellant re-offending;
(b)the appellant had taken no responsibility for his violent offences;
(c)the appellant had claimed to have pleaded guilty despite not agreeing with all the facts;
(d)the appellant attempted to justify his behaviour; and
(e)the appellant was prepared to place the blame on his de facto partner and her mental health issues (but, nonetheless, it would appear the appellant's partner remained supportive of him).[26]
[26] ts 14, 26 July 2023.
The Magistrate observed that the appellant showed no insight into how his offending behaviour had affected his de facto partner or the victim at the Scarborough Sportsman's Club. The Magistrate concluded that the appellant showed only limited remorse in that:
… you simply don't appear to understand how your actions of violence can affect others, notwithstanding your past dispositions for offences of violence.
You've been convicted on multiple occasions for offences of violence, and those past penalties haven't deterred you from engaging in violence on these occasions.
The Magistrate summarised the material facts of the aggravated common assault offence. Her Honour summarised the facts this way:
… you had been arguing with your partner over a number of hours, you've taken a spoon and made an implied threat towards her with that spoon, in the course of the verbal argument. You pointed it in her direction, and then you pushed her to the ground.[27]
[27] ts 13, 26 July 2023.
Her Honour then rejected the appropriateness of a suspended sentence for the aggravated common assault and concluded that a term of immediate imprisonment was warranted, to reflect the seriousness of the offence and to protect the community.[28] Her Honour also noted that the aggravated common assault was further aggravated, in a factual sense, by having been committed whilst the appellant was subject to a community based order.
[28] ts 15 ‑ 16, 26 July 2023.
The Magistrate observed that, even when time spent in custody was taken into account,[29] a term of immediate imprisonment was the only appropriate disposition.[30] Her Honour then structured the sentence to account for the totality principle in all the circumstances.[31] The head sentence was applied by the Magistrate to the aggravated common assault offence, with her Honour imposing a sentence of nine months' imprisonment as explained above.
[29] Being 134 days as at 26 July 2023.
[30] ts 16, 26 July 2023.
[31] ts 16, 26 July 2023.
Her Honour then imposed sentences for the common assault committed in August 2022 (discounted to 6 months because of the early plea), the common assault committed in October 2021 (discounted to 1 month, but to be served cumulatively to recognise the seriousness nature of the offence, albeit on the incorrect facts), and then the two firearms offences (1 month cumulative and 1 month concurrent, which included the discount).[32]
[32] ts 17, 26 July 2023.

D. Grounds of appeal

The grounds of appeal are as follows:
1.There was a miscarriage of justice in that the facts that were read to the court in relation to PE 43107 of 2021 were the incorrect facts and related to an entirely separate previous offence.
2.The learned sentencing Magistrate erred in imposing a sentence in relation to PE 57428 of 2022 that was manifestly excessive.
3.The learned sentencing Magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle.

E. Legislative framework

The appellant's application for leave to appeal is made under div 2 of pt 2 of the CA Act.
An aggrieved party may appeal a sentence imposed as a result of a conviction.[33] The grounds of appeal may include where there has been an error of law, where a sentence has been imposed that was inadequate, and where there has been a miscarriage of justice.[34]
[33] CA Act, s 6(f) and s 7(1).
[34] CA Act, s 8(1)(a) and (b).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[35] meaning that the ground is required to have a rational and logical prospect of succeeding.[36] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[37]
[35] CA Act, s 9(2).
[36] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
[37] CA Act, s 14(2).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[38]
[38] CA Act, s 9(3).

F. Disposition ‑ ground 1

As I have noted, ground 1 was conceded by the respondent. That concession was properly made in my view. As the appellant was re‑sentenced for the common assault on an incorrect basis, there has been a miscarriage of justice and the ground should be allowed.[39]
[39] Abassi v Ketteringham [2020] WASC 325.
The miscarriage arises in this case because of the incorrect factual basis for the sentencing. The error appears from the transcript of proceedings on 26 July 2023 when viewed in light of the transcript of proceedings on 13 June 2022, the latter being attached to the Sinton Affidavit.
It is not necessary, in my view, for the court to further analyse the source of the error, nor to assess whether the facts upon which the appellant was sentenced were more or less serious than the correct facts of the offence in which the appellant pleaded guilty. This is because the error is not one of a misstatement of certain aspects of the offence or as to matters of mere detail. The appellant was sentenced on the basis of a factual scenario which bore no relation to the true facts of the offence.
The appellant will need to be re‑sentenced by this court in accordance with s 130(1)(b) of the Sentencing Act. That provision states as follows:
If satisfied that a person committed an offence while subject to a CRO or community order, a court that may deal with the person under this section may -
…
(b)if the CRO or community order is not then in force, sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence.
As to the sentence which should now be imposed, both counsel accepted the court was in a position to impose a sentence on the appellant, and brief submissions were made by the appellant's counsel by way of a plea in mitigation at the hearing on 6 December. The respondent submitted that the appropriate sentence for the common assault should be a sentence of imprisonment. Whether it is to be served concurrently with or cumulatively on the other sentences, and the extent (if at all) the sentence should be moderated by totality considerations will depend, according to the respondent, on the outcome of the other grounds of appeal. I will accordingly, first address grounds 2 and 3 before returning to this issue.

G. Disposition ‑ ground 2

As to ground 2, the appellant submitted that the sentence of 9 months' imprisonment was manifestly excessive. The appeal ground involves an allegation of implied error.
The principles governing appeals contending that an error should be inferred on the basis that a sentence is manifestly excessive are well established. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of offences of that type, and the offender's personal circumstances.[40]
[40] Kabambi v The State of Western Australia [2019] WASCA 44 [21]. See also Smith v The State of Western Australia [2014] WASCA 238 [32] ‑ [33] and, relatively recently, the decision of the Court of Appeal in JTR v The State of Western Australia [2023] WASCA 131 [129].
Further, it is well-established that the guidance which may be provided by comparative cases is flexible rather than rigid.[41]
[41] Mogridge v The State of Western Australia [2016] WASCA 205 [37].
There is no one correct sentence for any particular offence.
Fundamentally, as the appeal is against the exercise of the sentencing Magistrate's discretion, it will be insufficient for the appellant to simply persuade me that I would have reached a different view in the exercise of that discretion. In the absence of an express error, it will ordinarily be necessary to demonstrate that the sentence is so unreasonable or plainly unjust that there must have been some misapplication in principle in fixing the sentence.[42]
[42] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
Let me now turn to address the matters outlined at [45] above.

Maximum penalty

The maximum penalty for the offence of aggravated common assault is imprisonment for 3 years a fine of $36,000: s 313(1)(a) of the Code.

Seriousness of the offence

As to the seriousness of the criminal conduct which was the subject of the aggravated common assault, the following matters point strongly in favour of a conclusion that the appellant's offending was at the upper end of the range of offences of this nature.
First, the offence was committed in a circumstance of aggravation, namely that the victim was in an intimate family relationship with the appellant.
Second, the appellant expressly accepted that the offence was aggravated by the fact it was committed while the appellant was subject to a community based order.[43] The community based order had been imposed in June 2022 in respect of the common assault committed on 15 October 2021 at the Scarborough Sportsmen's Club.
[43] Appellant's submissions [34].
Third, the circumstances of the commission of the offence were, in my view, self‑evidently serious. As with most offences of domestic violence, this offence involved an abuse of trust, where the victim was in a vulnerable position by reason of the greater physical strength of the appellant.
As the respondent correctly submits, the victim here would likely have found great difficulty in seeking to extricate herself from this situation.
The gravity of the offence travels well beyond characterising the micro‑conduct involved, such as the appellant's pushing of the victim or the use of a spoon (as distinct from some other more threatening implement).
The totality of the conduct must be assessed.
There had been an argument lasting the entire afternoon, and into the evening. The victim had retreated into the bedroom to avoid the appellant, and the appellant went into the bedroom to verbally abuse the victim. The appellant obtained a kitchen utensil from the kitchen and returned to where the victim was located. He pointed the implement at the victim. The appellant continued to yell at the victim and then grabbed her and pushed her to the floor. She was alone, in her residence. It was late at night. I accept that the incident was likely to be terrifying for her.
I accept the submission of the respondent that the appellant had intentionally armed himself with the spoon before returning to the bedroom and committing the offence. An inference was open on the facts that the appellant intended to use the spoon to cause the victim to submit to his will, with the implied threat that it would be used to strike her. The appellant employed threats and violence as a means of power and control over his partner, through this conduct.

Customary standards for sentencing

In their written submissions, both counsel addressed the relevance of the sentencing outcomes in Leighton v Nelson[44] and Wungundin v Barndon.[45] Counsel also made reference to Clarke v Cantatore[46] and Bropho v Hall.[47] It is unnecessary to explore the facts of each of those cases in any detail, in my respectful view.[48] It is sufficient to note there are obvious differences between the facts before the sentencing courts in those cases and the present factual circumstances.
[44] Leighton v Nelson [2016] WASC 354, noting that the appeal in that case was allowed on totality grounds without adjustment to the length of sentences for the individual offences involved in that case (at [37] and [42]).
[45] Wungundin v Barndon [2013] WASC 28, noting that the appeal in that case was allowed on the basis that a sentence of imprisonment was a sentence of last resort (at [9]).
[46] Clarke v Cantatore [2019] WASC 385.
[47] Bropho v Hall [2015] WASC 50, noting the sentence in that case for the offence of aggravated common assault was 15 months' imprisonment, which was regarded on appeal as being manifestly excessive (at [42]).
[48] I refer to the appellant's submissions at [46] ‑ [51], and the respondent's submissions at [20] ‑ [31].
It should also be recognised that there is no established range of offences for common assault given the variety of circumstances in which offences of that kind may be committed.[49]
[49] Wungundin v Barndon [6].
The appellant accepted that there was a need for general deterrence in cases involving domestic violence.[50]

Personal circumstances

[50] Appellant's submissions [36].

The appellant is a 40 year old Aboriginal man. His upbringing was not easy and he left both home and school at an early age, such that his educational level is quite low.[51]
[51] ts 46.
He is the father of seven children, aged between six and 23 years of age. None of the children are from the relationship with the de facto partner who was the subject of the aggravated common assault.[52]
[52] ts 45.
The appellant accepted that his criminal history demonstrated the need for specific deterrence.[53] Although his criminal record is relatively lengthy, his last sentence of imprisonment was in 2012.

Conclusion

[53] Appellant's submissions [35].

I do not consider the appellant has established this ground of appeal.
The sentence of 9 months' imprisonment is not manifestly excessive having regard to the factors identified and considered above. This was a serious breach of s 313(1)(a) of the Code. The offence was committed late at night, within the family residence. The victim was pushed to the ground after some hours of argument. The effect on the victim is likely to have been impactful. The appellant was subject to a community based order at the time, which further aggravates the criminality of the conduct. In the context of the maximum sentence for this offence, and recognising the full application by the Magistrate of the discount for the early plea of guilty, a sentence of 9 months' imprisonment as the head sentence as the disposition of this offence is within range.
Further, as I have noted already, it is not sufficient for the appellant to simply persuade me that I would have reached a different view in the exercise of the sentencing discretion. It is necessary to demonstrate that the sentence is so unreasonable or plainly unjust that there must have been some misapplication in principle in fixing the sentence. I do not consider that conclusion can be reached in the matter before me. That is, I am not persuaded that the sentence imposed by the Magistrate, of 9 months' imprisonment, is so beyond the range of likely sentencing outcomes to justify a conclusion there has been an implied error in the sentencing process.

H. Disposition ‑ ground 3

By ground 3, the appellant asserts that the total effective sentence imposed on the appellant infringed the first limb of the totality principle.
In JTR v The State of Western Australia, a plurality of the Court of Appeal explained the first limb of the totality principle in the following manner:
The first limb of the totality principle requires that the total effective sentence imposed on an appellant who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.[54]
[54] JTR v The State of Western Australia [129(4)] (Mitchell & Vandongen JJA).
The plurality continued:
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.[55]
[55] JTR v The State of Western Australia [129(5)] (Mitchell & Vandongen JJA).
The total effective sentence in the present case was 17 months' imprisonment, as detailed in Attachment A to these reasons.
The appellant submits that the errors established by grounds 1 and 2 had the result that the total effective sentence imposed was disproportionate to his criminality.[56] As the respondent noted, the appellant's contention there had been an infringement of the first limb of the totality principle depended on the success of the other grounds of appeal.
[56] Appellant's submissions [55]. The appellant does not challenge the individual sentences imposed for the other offences.
I have accepted that an error has been demonstrated with respect to ground 1 and that the appellant must be re‑sentenced in respect of that offence. However, I do not accept that ground 2 has been made out.
In these circumstances, I consider the appropriate course is to first re‑sentence the appellant in relation to the common assault committed in 2021 (that is, PE 43107/2021) and then undertake an assessment of the total effective sentence to ensure the sentence imposed bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases. I must also consider whether the overall term of imprisonment has a 'crushing' effect on the appellant.[57]
[57] JTR v The State of Western Australia [181] ‑ [196] (Mitchell & Vandongen JJA).
I will pause here to note that the Magistrate had regard to the totality principle in structuring the sentence for the appellant. The Magistrate structured the sentence to 'account for totality in all the circumstances'.[58] There are additional features of the sentencing, as highlighted by the respondent, which demonstrate the Magistrate paid regard to the totality principle in approaching the sentencing task in respect of the five offences before her.[59] Indeed, it appears to me to be quite plain that the Magistrate moderated the sentences on totality grounds, even though her Honour did not expressly state the terms of the provisional sentences she would have imposed before applying the totality principle.
[58] ts 16, 26 July 2023.
[59] Respondent's submissions [36].
As to the common assault, I have had regard to the further submissions made by counsel for the appellant by way of mitigation, and to the facts and seriousness of the offence itself. I have reviewed the appellant's criminal record and note that it offers nothing by way of mitigation in favour of the appellant. Further, the Magistrate's summary of the pre-sentence report reveals a lack of contrition on the appellant's part. The offence involved an assault on a person known to the appellant, in a carpark late at night. The event had been preceded by an evening of drinking at the Sportsmen's Club. The facts reveal the appellant was unrepentant when detained by the police, although he subsequently pleaded guilty.
I am unable to impose a community based order or an intensive supervision order as the appellant is in custody. A fine for an offence of this nature, and given the circumstances, would not reflect the seriousness. A sentence of imprisonment is appropriate for the offence, including to provide a measure of protection to the community.[60] The sentence should reflect the objective seriousness of the conduct. Undertaking the sentencing exercise afresh, and before having broader regard to totality considerations, I consider a term of imprisonment of 1 month should be imposed, recognising also that the appellant has spent a considerable time in custody and taking into account a 25% discount for the appellant's plea of guilty. I am unpersuaded the sentence should be suspended, given the nature of the offending involved, even assuming a suspended sentence was available.[61]
[60] Sentencing Act, s 6(1) and s 6(4).
[61] Sentencing Act, s 76(3)(b).
This offence itself was committed on a different day to the various other offences for which the appellant was sentenced on 26 July 2023. Viewed in this sense, and before addressing totality considerations, I consider the sentence should be ordered to be served cumulatively.
Returning to the third ground of appeal, I note the total effective sentence following the re‑sentencing of the appellant in respect of the common assault offence committed in October 2021 would be 17 months' imprisonment (the same period the Magistrate came to consider). It is appropriate for the court to assess this total effective sentence to determine whether it bears a proper relationship to the overall criminality involved in all of the offences, when viewed in their entirety.
That said, I should be vigilant to ensure the appellant is not afforded a discount merely because he has committed multiple offences. I refer in this regard to the observations of the NSW Court of Criminal Appeal as follows:[62]
[16] The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306:
... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.
[17] The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.
[18]A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences. (underlining added)
[62] R v MAK [2006] NSWCCA 381 [18].

The appellant, when being sentenced by the Magistrate, had committed three offences of violence on three separate occasions. There were three different victims. One of the victims is the appellant's domestic partner. As to the first of these offences, the appellant was being re‑sentenced because he had breached a community based order. The latter two assaults were committed whilst the appellant was subject to the community based order. Indeed, the second assault committed by the appellant at the Sportsmen's Club occurred only 2 months after the community based order was imposed. The circumstances indicate there is a strong need for personal deterrence in sentencing the appellant.
These offences did not form part of one transaction.
In contrast, I note the two offences under the Firearms Act were committed at the same time, but on a different date to all of the other offences.
The offending which is revealed in this case stretches from October 2021 through to December 2022. It strongly suggests the appellant is prone to violent outbursts, particularly when alcohol is involved. That he has had access to a firearm and ammunition compounds the seriousness of the overall conduct when viewed in totality, in my view.
In my respectful view, a total effective sentence of 17 months' imprisonment does not offend the first limb of the totality principle, nor is it crushing in the circumstances, and it avoids the perception the appellant is receiving a discount for multiple offending. An overall sentence of this length properly reflects the assumed rehabilitation, and reduced demand for retribution, after the initial head sentence has been served. These considerations justify the shorter sentence for the third of the assaults, being PE 43107/2021 (which attracts a sentence of only 1 month, while the subsequent common assault attracted a sentence of 6 months, and the aggravated common assault was the subject of a 9 month term).
As the sentence I would impose in respect of the offence the subject of charge PE 43107/2021 is the same sentence the Learned Magistrate imposed, it may be asserted there has been no substantial miscarriage of justice and ground 1 of the appeal should not be allowed.[63] However, as the facts upon which the appellant was sentenced bore no relation whatsoever to the true facts of the offence, I consider it is appropriate to uphold the ground in the circumstances and to set aside the original sentence, so the appellant may properly be sentenced afresh.
[63] CAA, s 14(2).

Conclusion and orders

I have already made orders to extend the time for filing the appeal and to allow the Sinton Affidavit to be adduced.
Having regard to the reasons expressed above, I would further order that:
1.As to ground 1:
(a)leave to appeal is granted;
(b)the ground is allowed; and
(c)the sentence imposed by the Magistrate in respect of the offence the subject of charge PE 43107/2021 is set aside.
2.The appellant is sentenced to serve a term of imprisonment of 1 month in respect of the offence the subject of charge PE 43107/2021, with the sentence to be served cumulatively on the other offences for which the appellant was sentenced.
3.As to ground 2, leave to appeal is refused and the ground is dismissed.
4.As to ground 3, leave to appeal is refused and the ground is dismissed.
I will need to hear from the parties as to the precise terms in which the fresh sentence referred to above should be backdated (if necessary) to reflect the time spent by the appellant in custody and whether any additional orders are required to give effect to the foregoing reasons.

ATTACHMENT A
Table of offences and sentences imposed

No	Charge	Offence	Date of Offence	Offence Provision	Statutory Penalty	Sentences imposed
1	43107/2021	Common assault	15 October 2021	s 313(1)(b) Criminal Code	18 months / $18,000	1 month cumulative
2	11407/2022	Unlicensed possession of a firearm	25 March 2022	s 19(1)(c) Firearms Act	5 years (Summary conviction 3 years / $12,000)	1 month cumulative
3	11408/2022	Unlicensed possession of ammunition	25 March 2022	s 19(1)(c) Firearms Act	5 years (Summary conviction 3 years / $12,000)	1 month concurrent
4	44563/2022	Common assault	9 August 2022	s 313(1)(b) Criminal Code	18 months / $18,000	6 months cumulative
5	57428/2022	Aggravated common assault	23 December 2022	s 313(1)(a) Criminal Code	3 years / $36,000	9 months (head sentence)
Total effective sentence	17 months' imprisonment

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
14 DECEMBER 2023