Mead v Couper - [2000] WASCA 345

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MEAD -v- COUPER [2000] WASCA 345

CORAM: STEYTLER J

HEARD: 20 OCTOBER 2000

DELIVERED : 10 NOVEMBER 2000

FILE NO/S: SJA 1161 of 2000

BETWEEN: TREVOR JOHN MEAD
Applicant
AND
DONALD JAMES COUPER
Respondent

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Domestic violence resulting in broken jaw and other injuries - Sentence of 18 months' imprisonment not manifestly excessive in circumstances

Legislation:

Criminal Code, s 317

Result:

Appeal dismissed

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Ms J Andretich

Solicitors:

Applicant: Aboriginal Legal Service of WA (Inc)
Respondent: State Director of Public Prosecutions

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

Gallegos v The Queen [1999] WASCA 191
Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996
Holland v The Queen [1999] WASCA 43
House v The King (1936) 55 CLR 499
Kilner v The Queen [1999] WASCA 189
Lowndes v The Queen (1999) 195 CLR 665
R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997
Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999
Toomath v The Queen, unreported; CCA SCt of WA; Library No 990107; 9 February 1999

Case(s) also cited:

Nil

STEYTLER J: This is an appeal against sentence.
The case is one of domestic violence. The appellant, on 16 August this year, pleaded guilty to a charge of assault occasioning bodily harm. The victim was his de facto wife. The two had been living together for six years and had three young children.
The offence occurred when the appellant, a 25‑year‑old man, and his wife were walking down a street in Narrogin at about 10.00 am on Saturday 10 June. The appellant had been told (untruthfully) that his wife had been sleeping with another man. While the two were walking down the street the appellant accused the complainant of doing so. He then punched her in the face with a clenched fist four or five times. She fell to the ground. He kicked her in the back whilst she was sitting on the ground. She then got to her feet and attempted to run away. He grabbed her in a bear‑hug and carried her into a nearby vacant yard. She shouted at him to let her go. He released her and then raised a wooden fence post above his head in a threatening manner.
The complainant then went to the Narrogin Regional Hospital where she was found to have suffered a broken jaw, facial swelling, a cut above the left eye that required stitches, a cut upper lip and a sore back. She was taken to Royal Perth Hospital for further treatment.
At the subsequent hearing on 16 August the Magistrate sentenced the appellant to a period of 18 months' imprisonment with eligibility for parole.
There are four grounds of appeal.
The first is to the effect that the learned Magistrate erred in that the sentence was manifestly excessive in all of the circumstances. Circumstances which are particularly relied upon are that the appellant has no prior convictions involving personal violence, his favourable prospects for rehabilitation, the fact that the appellant has demonstrated remorse and had pleaded guilty at the earliest opportunity, the fact that his wife had not wanted him to be sent to prison and the effect of a prison sentence upon the appellant, his wife and children.
Allied to this ground is the second ground of appeal which contends, in the alternative, that if a custodial disposition was warranted the learned Magistrate erred by not suspending the sentence of imprisonment which was imposed by him.
It is true that the appellant has not previously been convicted of an offence involving violence. His adult offending has been limited to offences involving the consumption of alcohol in public places, driving offences and one offence of home burglary in respect of which he was sentenced to a period of 12 months' imprisonment suspended for one year in March 1998. That period of suspension had expired by the time of the commission of the assault on his wife.
It is also true that the appellant has demonstrated remorse, having pleaded guilty at the first opportunity, and that his wife told the Magistrate that she did not want her husband to be sent to prison. She said that the incident had been "just one mistake" and that she did not think that the appellant would commit further offences of that kind.
The task of a Court of Appeal, in an appeal against sentence, has been explained in House v The King (1936) 55 CLR 499 at 505 in the following way:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The first two grounds of appeal do not suggest that the learned Magistrate acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration. Rather, they rest solely upon the conclusion that the sentence was manifestly excessive or, to use the words of House v The King, above, so "unreasonable or plainly unjust" as to lead to the inference that in some way there has been a failure properly to exercise the discretion.
I do not consider that an unsuspended sentence of 18 months' imprisonment can be described, in the circumstances of this case, as being so unreasonable or plainly unjust that it demonstrates, without more, an error in the exercise of discretion. The assault was vicious. It resulted in serious injuries. The Court of Criminal Appeal has, on a number of occasions, recognised that there is a general public interest in, and concern with, incidents of domestic violence (see, for example, Holland v The Queen [1999] WASCA 43 [14] per Kennedy J, with whom Ipp and Owen JJ were in agreement and Gallegos v The Queen [1999] WASCA 191 [28], per Malcolm CJ, with whom Murray and Parker JJ were in agreement). It seems to me that in this context (and it should not be overlooked that the offence is one which, if tried on indictment, carries a maximum sentence of 5 years' imprisonment: see s 317 of the Criminal Code), even if the sentence might be regarded as severe, no sufficient basis has been shown to enable me to substitute any different opinion for that of the learned sentencing Magistrate. In so far as other cases are of any assistance (and, as has repeatedly been said, each turns upon its own facts) there is nothing in any of those to which I have been referred which would suggest that the sentence imposed by the learned Magistrate was one which was beyond the limits of an acceptable discretion (see, for example, the cases considered in Kilner v The Queen [1999] WASCA 189, pars 22 to 27 and, in particular, Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996; Toomath v The Queen, unreported; CCA SCt of WA; Library No 990107; 9 February 1999; and Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999). As has been said in Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 672:
"... a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
It follows that neither of the first two grounds of appeal has been made out.
The third ground relates to the fact that the Magistrate had, and made use of, a copy of the police summary of the material facts pertaining to the offence. The appellant contends (as this ground was explicated in the course of submissions) that the learned Magistrate should not have had the police summary in his possession before the appellant had made his election to accept summary jurisdiction and to plead guilty. However counsel for the appellant readily accepted that nothing turned on this in the circumstances of this case as it was not suggested that the summary was in any sense inaccurate or that it differed in any respect from that given by the prosecution to the Magistrate in the course of oral submissions (which relied upon the police summary). Moreover, the learned Magistrate said that he did not read summaries of that kind (including this summary), notwithstanding their presence on the file, until such time as it was appropriate for him to do so.
It follows that there is no substance to this ground of appeal.
The fourth, and last, ground of appeal arises out of the following comment which the learned Magistrate made in the course of his sentencing remarks:
"It's been suggested that I should make a supervision order with anger management and so on, and in one sense some people might say, 'Well, that's probably the way to go,' because it would make you look at the issues. But other people would say, 'Look, that's a totally inappropriate way of dealing with something, because it's such a soft option that it doesn't send the correct message to the community.' Because people will say all it requires you to do is, say, turn up once a month, go along and sit in on a domestic violence course, nod your head and walk away from it.
My view is, on a consideration of these issues, that this is an offence of such a serious nature that the only way the message is going to be spread is through imprisonment."
The appellant contends that the learned Magistrate fell into error in rejecting a supervision order, coupled with an anger management course, as a "soft option".
It should, firstly, be said that the learned Magistrate did not say that an order of that kind was a "soft option". All that he said was that there were some in the community who might view it in that way. His Worship's comments were made in a context in which it appears from his reasons read as a whole that he was expressing the conclusion that the offence was so serious as to justify only a period of imprisonment. The notion of general deterrence obviously loomed large in his mind and it was this which, on my reading of them, prompted the comments which his Worship made. He appeared to be of the view that the needs of general deterrence would not sufficiently be served by the imposition of a supervision order.
That general deterrence is an important consideration in cases of this kind is not in doubt (see, for example, R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997 and Gallegos v The Queen, above, at [28]). The learned Magistrate was consequently entitled to say, as in effect he did, that he regarded it as so. It was, in my opinion, also open to him to conclude that the needs of general deterrence would not, in a case so serious as this, sufficiently be met by anything other than a sentence of imprisonment. I am consequently not persuaded that the learned Magistrate made any appealable error in this respect.
It follows that the appeal should be dismissed.