McAuliffe v Mears - [2008] WASC 280

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: McAULIFFE -v- MEARS [2008] WASC 280

CORAM: McKECHNIE J

HEARD: 19 NOVEMBER 2008

DELIVERED : 19 NOVEMBER 2008

FILE NO/S: SJA 1092 of 2008

BETWEEN: JACK MATTHEW FRANCIS McAULIFFE
Appellant
AND
ALEX MEARS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY CHIEF MAGISTRATE E A WOODS
File No  :PE 57835 of 2008, PE 57836 of 2008, PE 57837 of 2008

Catchwords:

Criminal law and procedure - Sentencing - Serious assaults - Offender 18 years of age - Immediate imprisonment - Appeals - Whether reasonable prospects of success

Legislation:

Nil

Result:

Leave to appeal refused

Category: D

Representation:

Counsel:

Appellant: Ms L B Black
Respondent: Mr A E H Putt

Solicitors:

Appellant: Linda Black
Respondent: Director of Public Prosecutions (WA)

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

Samuels v State of Western Australia [2006] WASCA 222; (2005) 30 WAR 193

McKECHNIE J: This is an application for leave to appeal. If leave is granted, as foreshadowed, an application for bail will follow.
The appellant, who is aged 18 years, appeared in the Magistrates Court before the Deputy Chief Magistrate on 25 September 2008 and pleaded guilty to three charges of assault occasioning bodily harm. The facts were outlined by the prosecutor:
Your honour, the facts are, it was approximately 1.10 pm, it was Friday, 20 September 2008. Two accused - the co‑accused has already been in court this morning and remanded off - were in Hyde Park and Glendower Street in Perth. At this time the accused were in company of a number of individuals not charged near the recreation area within the park situated next to a lake.
At the same time, two complainants were walking around the lake area where they approached the groups position. By doing so, they were attacked by several members of the group, all of whom proceeded to kick and punch both complainants to the head and body causing them to fall to the ground. Whilst on the ground, both males were repeatedly kicked and punched by members of the group including the accused.
On hearing sounds of the disturbance, a nearby resident existed his premises and ran across the park to aid the two complainants being assaulted. On approaching the scene, the group then diverted their attention to the resident, again punching and kicking him to the head and body area causing him to fall into the lake with one of the group.
A second resident also came to assist a short time later and managed to subdue the group whereupon a number of the members of the group ran away from the scene. The second resident directed the remaining members of the group to the roadside where the police were called to attend. When officers attended, three accused were identified by both witnesses and the three victims as having been involved in the assault.
All parties stated the three males, including the accused, were actively involved in punching and kicking all three complainants in an unprovoked attack. The three accused were arrested by attending officers and conveyed to the Perth police station. It became apparent on speaking to the three accused they were all extremely intoxicated.
All three of the victims have sustained injuries to their head and face consisting of lacerations, cuts, swelling and bruising resulting in the first two victims attending Royal Perth Hospital to receive medical treatment. Both the accused were bailed to attend in the Magistrates Court on the present charge. A third has been summonsed to appear in the Perth Children's Court.
The appellant was represented by counsel who is not counsel on this application. This was the appellant's first appearance on these charges and he pleaded guilty at the earliest opportunity. Counsel made a comprehensive submission to the magistrate, pointing out that there was a consumption of colossal quantities of alcohol by a group of young men who were in the Hyde Park area. The appellant was one of them.
The appellant's good character was fairly placed before the magistrate by counsel:
He is otherwise a fairly stable young man. He lives with his parents. He is employed at a newsagent. His future plans are to go to TAFE, study art and design, and he has completed a certificate in retail business. He has a future plan that would indicate that consequences of involvement in this type of activity and conviction is going to be difficult for him.
In the course of submissions, counsel said:
I can indicate to the Court that it has not been lost on him the consequences of this type of behaviour. He has been quite fearful of a period of imprisonment being imposed.
The magistrate intervened:
So he should be.
Counsel then proceeded and the prosecutor responded, indicating nothing in particular but said:
[I]f you're looking at a substantial fine in relation to these matters, I would ask that matters be paid pursuant to section 56 of the Sentencing Act to the complainants of this matter.
The magistrate then inquired about the injuries:
Have we got any information about their injuries or what happened when they went to Royal Perth?
As this was a first appearance, the magistrate said:
I would like to get some information or give them at least - give them the opportunity to provide some information to the plot.
The matter was then adjourned. Just before it was adjourned the magistrate said to the appellant:
This matter will be adjourned to 17 October for sentencing. There are no guarantees that you will not receive a term of custody for this offence or these offences. These are serious offences. Unprovoked attacks, strangers minding their own business. You had a skinful of alcohol. There is no excuse for your behaviour and to avoid a term of imprisonment I think you will be very lucky, personally; but anyway I will ask for the victim impact statements.
Bail was extended. The fact that bail was extended indicates to me that the magistrate had not finally determined the matter in her own mind. No pre‑sentence report was sought by counsel or requested by the magistrate.
When the matter returned on 17 October the appellant was again represented and handed up some references, which the magistrate appears to have read. The magistrate referred to an email about the information from the victims:
I have spoken to the victims, incident discussed, matter in some detail, they stated the following: Mercitzen states he received three broken teeth, he has to see an orthodontist specialist about which will require the jaw to be straightened over the coming weeks. He has sustained a scar to his forehead and bruising. Some of that has subsided. He said he does not feel safe to go out at night and will not walk through our park area alone.
Mr Talkersiff states that although he had fewer visible injuries than his friend, he had some lumps on his head where he was kicked. He can no longer lift his arms and gets constant headaches which are affecting his work as a financial consultant.
Mr Gabalatt he was unable to get hold of, answer phone only. This has obviously affected the victims considerably. All of them are professional people and did nothing to provoke such an unnecessary alcohol fuel attack.
After the reading of that email counsel said:
Those matters are not disputed in where Mr McAuliffe - and they are also not unexpected in terms of the victims. All I can say is that for his part, he has accepted responsibility.
Counsel then referred to the letters which had been provided and submitted:
The young man is otherwise responsible and has exhibited what one would consider on the basis of the letters, appropriate behaviour for some 18 years.
Counsel referred to the conviction for disorderly conduct, which was a spent conviction:
Because alcohol was at the root of this event, he has taken steps to approach Holyoake and make an application to be part of the men's programme.
These submissions were before the magistrate and clearly so was the option of suspension of sentence because counsel expressly sought such a disposition. After some further interchange between counsel, the magistrate commenced her sentencing remarks.
No submission is made that the magistrate did not accurately comprehend the seriousness of the behaviour. She detailed the mitigating factors and it is not suggested, apart from one aspect in relation to the pre‑sentence report, that she erred in her understanding of the mitigatory factors.
She then said:
There is no question that these three offences, taken as one effectively because it happened at the same time, warrant a period of imprisonment and the only issue is whether that should be suspended and I am of the view that, notwithstanding all those personal factors that perhaps it shouldn't be.
She then gave reasons why. She said:
People deserve to know they will be protected by the law and deserve to know they will be safe in the community and not be attacked by people who are not responsible for their actions, and although it is a very harsh thing to do to someone your age and your background I don't think there is any alternative other than a term of immediate imprisonment -
She dealt with the issue of discount under the Sentencing Act 1995 (WA) and set a term of 12 months' imprisonment with parole.
The appellant seeks leave to appeal on five grounds, which were appropriate and duly particularised. Under the Criminal Appeals Act 2004 (WA) s 9(2), I must not grant leave in respect of a ground unless I am satisfied that it has reasonable prospects of success, as explained in Samuels v State of Western Australia [2006] WASCA 222; (2005) 30 WAR 193. That is the test I will apply.

Ground 1

The learned Magistrate erred in law in failing to consider or properly consider other options for sentence other than an immediate term of imprisonment.
Particulars
(a)The learned Magistrate failed to obtain a pre‑sentence report prior to proceeding to sentence the offender.
(b)Without a pre‑sentence report, the learned Magistrate could not have imposed an intensive supervision order, even if she had considered the appropriateness of such an option.
(c)No express or implicit consideration was given to either an intensive supervision order or a community based order for an 18 year old who had no prior record.

As was expanded in argument today by Ms Black, the magistrate, without a pre‑sentence report, it was submitted, was in a difficulty because she was unable to assess risk, which is an important feature, and also unable to assess rehabilitation and the rehabilitative plans.
I do not consider there are reasonable prospects of success on this ground. The magistrate, through counsel, had options put to her and essentially reached the view that imprisonment was the only appropriate sentence having regard to the circumstances of the offending. It is not reasonably arguable that she could have erred in that assessment. Clearly imprisonment was open to the magistrate, notwithstanding all the mitigating matters.
A pre‑sentence report was, as I say, not asked for. While that may not be fatal to an appeal, the question of risk and rehabilitation are matters in the future. There are some offences which are so serious that other sentencing principles, such as general deterrence, something relevant here, and punishment for a dreadful crime, overwhelm all other matters. This was such a crime. Those matters of rehabilitation and other matters could be, and in this case were, dealt with by the making of a parole eligibility order.

Ground 2

The learned Magistrate failed to give any, or any sufficient consideration to the appropriateness of a suspended term of imprisonment, where such a term was plainly open, having regard to the age and antecedents of the Appellant.
Particulars
(a)The circumstances of the offence, while serious, were not so serious as to require an immediate term of imprisonment without regard to all of the circumstances.
(b)No explanation was provided by the learned Magistrate as to why a suspended term would not be appropriate.
(c)If imprisonment was required then all of the circumstances considered together did make suspension of the term the appropriate.

This ground and grounds like it always face a difficulty where a magistrate has imposed a sentence which was unarguably open. The matter really comes down to a question of balance and weight. The magistrate is the principal sentencing officer. It is her discretion, and a court is unable to interfere in a ground, such as ground 2, unless there is manifest error.
Manifest error may of course be in the result or it may be in some aspect of process. The magistrate did briefly but sufficiently explain why she considered suspension and imprisonment.
Having regard to the serious nature of the offence, she must have considered that general deterrence and other factors meant that the only appropriate sentence was the one she imposed.

Ground 3

The learned Magistrate erred in the manner in which she paid regard to a conviction that was the subject of a spent conviction order.

Ground 3 is not really pressed and, quite frankly, not argued. The magistrate was entitled to have regard to it, and it is not suggested to the contrary. The manner in which she dealt with it was this:
You are 18 years old, you have no record except for this disorderly which might perhaps have made someone think there was a problem with alcohol, but obviously it didn't because nothing came as a result of that. You came along to court, got a fine, got a spent conviction order and walked away as if nothing had happened until six months later this happened.
I am unable to see any reasonable argument that the magistrate erred in that respect.

Ground 4

That the sentence was, having regard to all the circumstances, manifestly excessive by reason of the failure to impose a non custodial order, or if imprisonment was required, to suspend the operation of such sentence.
Particulars
(a)If imprisonment was required no complaint is made with respect to the length of the term of 12 months.
(b)The Appellant was 18 years of age.
(c)The only prior record of the Appellant was a minor offence which was the subject of a spent conviction order.
(d)The Applicant had impeccable antecedents and excellent character references.
(e)The Appellant pleaded guilty at the very first available opportunity in circumstances where neither of his two co‑offenders had done so.
(f)No other potentially relevant factors were known due to the failure to obtain a pre‑sentence report prior to sentencing.

Counsel very properly conceded in the particulars and in argument that a sentence of 12 months' imprisonment itself, while on the high side - a comment with which I respectfully concur - is nevertheless within the range of a sound sentencing disposition.
The real sting of the ground as it were seems to be pointing out again that a suspended sentence should have been imposed. For the reasons I have expressed, I consider it was open for the magistrate not to impose a suspended sentence.

Ground 5

The learned Magistrate erred in having regard to what was put forward as a victim impact statement in circumstances where such statement was not shown to Counsel for the Appellant and was provided to the court in an inappropriate and informal email format.

There is an issue in the Sentencing Act 1995 (WA) between s 15, which provides that a court sentencing an offender may inform itself as it thinks fit, and s 24, which provides the way in which victims may put matters before the court. In my view the sections are not mutually exclusive. They are dealing with different issues and s 24 provides a formal mechanism to allow victims to put matters before the court. It does not preclude an informal manner, as was done in this case, and particularly, as I have said, those matters were not disputed.
In my view there are no reasonable prospects of success in relation to ground 5.

Conclusion

It is of course a harsh and difficult thing, as the magistrate acknowledged, that a young person of 18 should be sent to prison on the first occasion. Against that, these were particular offences of violence and thuggery, about which general deterrence and principles of punishment overwhelmed all other matters. It has not been shown that the magistrate made an arguable error, notwithstanding the very able and comprehensive submissions of counsel for the appellant. Leave to appeal is therefore refused.