McKay v Hancock - [1999] WASCA 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MCKAY -v- HANCOCK [1999] WASCA 268

CORAM: SCOTT J

HEARD: 23 NOVEMBER 1999

DELIVERED : 26 NOVEMBER 1999

FILE NO/S: SJA 1164 of 1999

BETWEEN: STEVEN HENRY ALFRED MCKAY
Appellant
AND
JOHN CHARLES HANCOCK
Respondent

Catchwords:

Appeal against sentence - Criminal law - Assault occasioning bodily harm - Plea of guilty - Excessive term of imprisonment - Indication of remorse - Assault against person carrying out lawful duties in hotel

Legislation:

Nil

Result:

Appeal allowed
Suspended sentence substituted for sentence of 12 months' imprisonment with parole

Representation:

Counsel:

Appellant: Mr N J Lemmon
Respondent: Ms L Tovey

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Crown Solicitor

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

Murray v The Queen, unreported; CCA SCt of WA; Library No 5705; 6 February 1985
Pearce v Bancroft, unreported; CCA SCt of WA; Library No 7594; 12 April 1989

Case(s) also cited:

Day v The Queen, unreported; CCA SCt of WA; Library No 940614; 7 November 1994
Garlett v Dillon, unreported; SCt of WA (Scott J); Library No 960353; 5 July 1996
Mustica v Townsend, unreported; SCt of WA (Franklyn J); Library No 7464; 17 January 1989
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Minchinton, unreported; CCA SCt of WA; Library No 980684; 27 November 1998
Sindel v The Queen, unreported; CCA SCt of WA; Library No 990110; 16 March 1999
Swan v Warnock, unreported; SCt of WA (Anderson J); Library No 930314; 31 May 1993
Thompson v The Queen (1992) 8 WAR 387

SCOTT J: On 16 September 1999, Wheeler J granted the appellant leave to appeal against a sentence of 12 months' imprisonment with a parole order imposed by a Magistrate at Port Hedland on 24 August 1999. This followed the appellant's plea of guilty to one charge of assault occasioning bodily harm.
The grounds of appeal are:
"(i)The learned Magistrate erred by finding that the matter was sufficiently serious that nothing else than a term of imprisonment was called for.
(ii)Alternatively, if a custodial disposition was warranted the learned sentencing Magistrate erred by not suspending the sentence."
The appellant was released on bail by order of Wheeler J made on the same day.
The facts surrounding the matter are set out in the reasons of the learned Magistrate as follows:
"As regards to circumstances of the commission of the offence, I accept what I've been told with regard to the statement of material facts. That says, among other things, that the complainant that you struck was a 32 year old woman employed at the Iron Clad Hotel as the manageress. It was 8 o'clock at night. You attended on the Friday at the hotel, which is the only hotel in Marble Bar, in company with a friend. The previous evening you'd been refused entry by that same person when unable to verify your age.
I accept what the sergeant said by way of comment that you do look young. It's quite reasonable, I would have thought, of the complainant to ask you to verify your age. You were playing pool when the complainant saw you and again requested you to verify your age. You were unable to satisfy the complainant about your age. You appeared intoxicated. You were requested to leave and then you became abusive. You walked from the pool room towards the main exit, picked up a can of beer.
She's asked you to put the beer back and leave, and attempted to usher you towards the door. I accept what's been said about the pool cue was that she was holding a pool cue but there's no evidence or information to the effect that she was prodding you with it. At that point the accused punched the complainant to the head with a clenched fist and kneed her to the head as she doubled over. The complainant and witnesses recall at least 2 punches to the head before observing the accused strike the complainant with the knee."
The learned Magistrate referred to the fact that the complainant sought medical attention for a cut above the left eye and swelling of her head and the left side of her nose.
The appellant participated in a video taped record of interview, which will be referred to later in these reasons.
His Worship referred to the difficulties suffered by the complainant as a result of the assault upon her and to the fact that she required a CT scan. The Magistrate also referred to other consequences suffered by the complainant, including the fact that she had difficulty sleeping and was in constant fear that either the appellant or his family, or both, were likely to confront her. The Magistrate referred to the fact that the complainant was on medical leave indefinitely, now lived in fear and had a scar above her left eye. His Worship then referred to the fact that the assault was upon a female in an hotel where the complainant was carrying out her lawful duties.
The victim impact statement indicated that the complainant also has difficulty in working in the same industry.
The Magistrate referred to the facts in mitigation on behalf of the appellant, including most importantly, the fact that he was 19 years of age. His Worship also referred to the appellant's plea of guilty and that it was his first offence as an adult offender, as well as his first offence involving violence.
His Worship was clearly of the view that the appellant had shown no remorse for his conduct and said in his sentencing remarks:
"It's been suggested by Mr Jones [counsel for the appellant at trial] that you have remorse for what you've done, however, I'm not satisfied there's any remorse by simply the plea of guilty."
His Worship referred to the pre-sentence report and to the fact that in the pre-sentence report the author referred not only to the appellant as having made a mistake, but also to the fact that the appellant felt "justified in defending himself". His Worship therefore concluded that the appellant had shown no indication of any remorse for his actions.
Following those observations, his Worship referred to the serious nature of the assault and to the other possible sentencing options. His Worship rejected a fine because he said that the appellant had no capacity to pay a fine and rejected any community based order on the basis that the appellant did not want to be placed on a community based order which would require him to perform community service hours, as it would interfere with his study.
Having considered all of those matters, his Worship came to the conclusion, which in my opinion was inevitable, that a period of imprisonment was the only available sentencing disposition. His Honour proceeded to sentence the appellant to a term of 12 months' imprisonment with eligibility for parole.
The sentence was imposed on 24 August 1999 and the appellant remained in custody until released by the order of Wheeler J on 16 September 1999.
The circumstances of the assault were very serious indeed. They occurred in a country town hotel where the evidence indicates that the appellant had been drinking. In a similar case, Pearce v Bancroft, unreported; CCA SCt of WA; Library No 7594; 12 April 1989, Franklyn J said at 10, citing with approval the case of Murray v The Queen, unreported; CCA SCt of WA; Library No 5705; 6 February 1985:
"I think it is time this Court should expressly say, although it has said so before, that unprovoked attacks in public places, attacks which involve personal violence to others, must be seriously considered and such attacks, in my view, call, generally speaking, for a deterrent sentence. The reasons for that, I would have hoped, would be obvious enough. It is not only the prevalence of that type of offence today but it is the potential that that type of offence has for provoking yet further outbreaks of violence, as indeed appears nearly to have been the case here."
Murray's case involved an unprovoked attack committed by a patron at an hotel in Karratha and Pearce v Bancroft (supra) also arose out of an incident in an hotel. Those cases have recognised the seriousness of conduct of this type in licensed premises because of their potential to lead to further acts of violence.
In Murray's case the assault consisted of a single blow. In this case the appellant was sentenced on the basis that he inflicted two blows to the complainant and also kneed her in the head, causing serious consequences for her as revealed in the victim impact statement provided to the court.
The learned Magistrate also indicated in his sentencing remarks to which I have earlier referred, that the appellant showed little or no signs of remorse. Having read the pre-sentence report, apart from the fact that the appellant pleaded guilty in the court below, there is little in that report which reveals any sign of remorse. The writer of the report says:
"This young man presented as quite mature, despite being only 19 years of age. McKay acknowledges that he has made a mistake but at the same time, feels he is justified in defending himself. He now wishes to put this matter behind him."
On the video conducted by the police who interviewed the appellant sometime after the event, however, it is clear, in my opinion, that the appellant did show some remorse. In answer to a question by the police, the appellant admitted, "that he had done the wrong thing" and when pressed further about that, agreed that he had hit the complainant, which he should not have done, and that he had hit her because she had asked him for identification when he did not have any. In my opinion, those statements to the police show that the appellant did show remorse for his conduct.
The pre-sentence report went on to identify the fact that the appellant was aged 19 years and that this conviction was his first as an adult. The report also indicated that the appellant had "strongly expressed" his wishes not to be placed on any order which would involve the performance of community service, as it may interfere with his study plans.
In all of the circumstances, therefore, the learned Magistrate had a difficult decision to make. The only other appropriate sentencing disposition was an order for a suspended term of imprisonment. However, his Worship was of the view that the appellant's conduct was too serious to justify such a disposition.
Having viewed the video tape of the interview between the appellant and the police, I am of the view that the learned Magistrate made an error in concluding that the appellant showed no remorse. In my view the appellant did accept responsibility for what he had done and acknowledged that he had done the wrong thing, in striking the complainant in the circumstances in which he did. It follows, in my view that the appellant should have been sentenced on the basis that he accepted responsibility for his actions and expressed remorse for his conduct.
As a result of taking all of these matters into account, I am of the view that the sentencing discretion of the learned Magistrate has miscarried. It may be, that the learned Magistrate either had no opportunity to consider the video tape, or, that having done so, gave insufficient weight to the appellant's indication of remorse.
Bearing in mind the fact that the appellant remained in custody between 24 August 1999 and 16 September 1999, and bearing in mind that he was also in custody from 23 November, to 26 November 1999, I am of the view that the appropriate course now is for a suspended sentence to be imposed in lieu of the sentence imposed by the learned Magistrate.
In all of the circumstances, in my opinion, the appropriate sentence is one of 9 months' imprisonment, to be suspended for a period of 12 months from the date of this order. That will enable the appellant to be immediately released from his present custody and will act as a sanction to prevent similar conduct in the future. It is important that the appellant should realise that any further misconduct on his part will result in the suspended sentence being activated.
I would allow the appeal to this extent.