McQuade v Thomas
[2021] WASC 64
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCQUADE -v- THOMAS [2021] WASC 64
CORAM: ALLANSON J
HEARD: 8 MARCH 2021
DELIVERED : 8 MARCH 2021
PUBLISHED : 9 MARCH 2021
FILE NO/S: SJA 1080 of 2020
BETWEEN: JOSEPH MCQUADE
Appellant
AND
STEVEN THOMAS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S M DE MAIO
File Number : PE 38476 of 2020
Catchwords:
Criminal law - Sentencing - Aggravated assault occasioning bodily harm - Whether sentence manifestly excessive - Turns on facts
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Extension of time granted
Leave to appeal refused and appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid of Western Australia |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Duncan v The State of Western Australia [2018] WASCA 154
ALLANSON J:
Introduction
This appeal against sentence was heard on 8 March 2021. After hearing argument I ordered that leave to appeal be refused and the appeal be dismissed, with reasons to be published. These are my reasons for dismissing the appeal.
On 31 August 2020, the appellant, Joseph McQuade, pleaded guilty to one charge of unlawful assault doing bodily harm, in circumstances of aggravation. The circumstance of aggravation was that the victim was of or over the age of 60 years.
The appellant was sentenced to imprisonment for 18 months, with the sentence to be served immediately. He was made eligible for parole.
On 13 October 2020, the appellant filed an appeal notice. There is one ground of appeal:
The learned sentencing Magistrate erred in imposing a sentence that was of a length that, having regard to the circumstances of the commission of the offence, the appellant's personal circumstances, and standards of sentencing for the offence, was manifestly excessive.
The extension of time
The appellant requires an extension of time. It is not opposed. The delay is relatively short and has been explained. Time will be extended.
The material facts
The offence was committed at about 10.15 pm on Saturday, 15 August 2020, at the victim's address.
The appellant and the victim were not known to each other.
The victim is 65 years old.
The appellant approached the victim's front door, banging on the fly screen, causing the victim to open the door and come outside. The appellant punched the victim to the mouth and to the ear with a closed fist, causing the victim to fall backwards. The victim grabbed the appellant's shirt in an attempt to stop his fall, and the appellant bit the victim on the thumb, breaking the skin.
The victim's wife came outside, and the appellant 'shaped up' as if he was going to hit her. She screamed. The appellant turned back to the victim, and kicked him to the back of the head.
As a result of the assault, the victim suffered a split top lip, a cut to the right ear, a cut to the thumb, a swollen and bruised right knee, and a graze to the left knee.
The appellant left the victim's property. When the police attended, the appellant was found around the corner, lying on his back in an intoxicated state. He was taken to the police station where he was too aggressive and intoxicated to take part in an interview.[1]
[1] ts 3.
The facts were not disputed. Counsel for the appellant said that the appellant had gone to a tavern that day, had drunk beer and become intoxicated, and could remember nothing after that.
Counsel for the appellant told the court that the appellant had recently been diagnosed with diabetes, type I, and had struggled to get his medication right.
Counsel also advised the court that, although the appellant has been in Australia for 10 years, he is an unlawful non-citizen and liable to be deported from Australia.
Sentencing remarks
In sentencing, the magistrate summarised the facts. Her Honour described the appellant's background as pro-social. Her Honour set out, correctly, the maximum penalty to which the appellant was liable, and the penalty to which he was liable on summary conviction. Her Honour then addressed the seriousness of the offence and said:
What makes this offence, in my view, towards the higher end of the scale of seriousness, is the fact that you didn't know this fellow in that you've knocked on his door, on his window, at quite a late hour. And you've hidden yourself in the shadows until he has come out and then you just let loose. What elevates the seriousness is the bite. That might be as a result of a reaction you've had to him grabbing your shirt.
The kick to the back of the victim's head, though, when he was lying on the ground, is in fact what, in my view, makes this offence higher on the scale of seriousness, in combination with, of course, the fact that you've gone to his house in the first place. At 65, I would not put him at an age which would make him especially vulnerable. What makes him especially vulnerable is the fact that he was on the ground when you've kicked into the back of the head.
What stops me from sending this upstairs to be dealt with [by] a District Court Judge is the fact that his injuries seem to be fairly minor.[2]
[2] ts 9.
The magistrate accepted that the appellant had pleaded guilty at the earliest opportunity and afforded to him a reduction of 25%. Her Honour referred to the appellant's record of relatively minor traffic, alcohol-related offences, and commented that there was a suggestion that the appellant had an issue with alcohol. Her Honour accepted that the appellant's remorse was genuine.
The magistrate concluded that a term of imprisonment was the only option based on the seriousness of the offending behaviour. Her Honour imposed a sentence of imprisonment for 18 months, to commence 15 August 2020, the date on which the appellant was first taken into custody.
No specific complaint is made about any of her Honour’s sentencing remarks.
The ground of appeal
The appellant appeals on the single ground that the sentence imposed was manifestly excessive.
Section 8 of the Criminal Appeals Act 2004 (WA) permits an appeal to a single judge from the decision of a magistrate on the ground that the court imposed a sentence that was excessive. The appellant identified no express error, but challenges the sentence on the ground that it is manifestly excessive. That is, error may be implied from a sentence that is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.
In order to determine whether a sentence is manifestly excessive, the offence should be viewed in light of: (a) the maximum sentence prescribed by law for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and (d) the offender's personal circumstances.
The penalty prescribed for unlawful assault doing bodily harm, in circumstances of aggravation, is imprisonment for 7 years.[3] On summary conviction, the offender is liable to imprisonment for 3 years and a fine of $36,000. The circumstance of aggravation increases the available maximum penalty from 5 to 7 years, and the penalty on summary conviction from 2 to 3 years.
[3] Criminal Code s 317(1).
The submissions of the parties have primarily addressed the standards of sentencing for the offence and the seriousness of the offending conduct. In effect, the appellant submitted that the authorities support a sentencing range that would result in a sentence of imprisonment of 12 months or less in these circumstances.
Comparable cases provide a flexible guide to sentencing standards for an offence. The sentencing range for an offence is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.[4]
[4] Duncan v The State of Western Australia [2018] WASCA 154 [43].
I have considered the cases referred to by both parties in their written submissions, none of which is strictly comparable. The offence of assault occasioning bodily harm can be committed in a wide range of circumstances, and the Criminal Code prescribes a variety of circumstances of aggravation. There is no tariff for the offence.
The sentencing magistrate correctly assessed the seriousness of the particular offence committed by the appellant. Her Honour was required to balance various factors. The injuries done to the victim were relatively minor; but the circumstances of the offending ‑ quite apart from the circumstance of aggravation ‑ were very serious. I have set out her Honour's sentencing remarks earlier and do not need to repeat them.
The appellant was given the maximum reduction available for his early plea. Her Honour took into account his remorse, and his relatively minor record. There was little else that could be mitigating.
The sentence may be in the upper end of the range of available sentences for an offence of this seriousness. But I would not infer from the length of the sentence imposed that, in some way, there has been a failure by her Honour to properly to exercise the discretion which the law reposes in her.
I would refuse leave and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
9 MARCH 2021
0