Messiha v Plaucs
[2012] WASC 63
•24 FEBRUARY 2012
MESSIHA -v- PLAUCS [2012] WASC 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 63 | |
| 24/02/2012 | |||
| Case No: | SJA:1099/2011 | 20 FEBRUARY 2012 | |
| Coram: | HALL J | 20/02/12 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced Aggregate term reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole | ||
| B | |||
| PDF Version |
| Parties: | REDA MESSIHA ROBERT FRANCIS PLAUCS |
Catchwords: | Criminal law Appeal against sentence Aggravated assault occasioning bodily harm Whether total effective sentence too long Totality principle |
Legislation: | Criminal Code (WA) s 221, s 313, s 317, s 338B Criminal Procedure Act 2004 (WA), s 8 Sentencing Act 1995 (WA), s 7 |
Case References: | Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Elliott v Blanchard [2007] WASC 289 Forward v Bower [2007] WASC 205 Morgan v Kazandzis [2010] WASC 377 Paskov v Hull [2008] WASC 163 R v Faithfull [2004] WASCA 39 Roffey v The State of Western Australia [2007] WASCA 246 State of Western Australia v Cheeseman [2011] WASCA 15 Stokes v Auckland [2012] WASC 2 Vagh v The State of Western Australia [2007] WASCA 17 Wallam v Dent [2008] WASC 170 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ROBERT FRANCIS PLAUCS
Respondent
ON APPEAL FROM:
For File No : SJA 1099 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B C GLUESTEIN
Citation : JO 8777 to 8781 of 2011
Catchwords:
Criminal law - Appeal against sentence - Aggravated assault occasioning bodily harm - Whether total effective sentence too long - Totality principle
(Page 2)
Legislation:
Criminal Code (WA) s 221, s 313, s 317, s 338B
Criminal Procedure Act 2004 (WA), s 8
Sentencing Act 1995 (WA), s 7
Result:
Appeal allowed
Appellant resentenced
Aggregate term reduced from 18 months' imprisonment to 15 months' imprisonment, with eligibility for parole
Category: B
Representation:
Counsel:
Appellant : Mr A O Karstaedt
Respondent : Mr J NewtonPalmer & Mr A G Hammond
Solicitors:
Appellant : Max Crispe
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Elliott v Blanchard [2007] WASC 289
Forward v Bower [2007] WASC 205
Morgan v Kazandzis [2010] WASC 377
Paskov v Hull [2008] WASC 163
R v Faithfull [2004] WASCA 39
Roffey v The State of Western Australia [2007] WASCA 246
State of Western Australia v Cheeseman [2011] WASCA 15
Stokes v Auckland [2012] WASC 2
Vagh v The State of Western Australia [2007] WASCA 17
Wallam v Dent [2008] WASC 170
(Page 3)
- HALL J:
Introduction
1 On 10 August 2011 the appellant was sentenced to a total aggregate term of imprisonment of 18 months. That sentence was comprised of separate sentences, some of which were made cumulative, for five offences. Those offences were one offence of aggravated common assault, one offence of threat to injure and three offences of aggravated assault occasioning bodily harm. He now appeals those sentences.
Facts
2 The facts were admitted by counsel who appeared for the appellant in the Magistrate's Court. Those facts are as follows: On Saturday, 30 July 2011 between the hours of 12.00 pm and 12.30 pm the appellant and the victim, (who is his wife), were at their home. Also present at the address were their two children.
3 Whilst in the garage of the premises the victim and the appellant were engaged in a verbal argument regarding the victim's vehicle, which was parked in the garage. The victim was standing near the doorway which leads to the kitchen area and the appellant punched her with his left fist to the right side of her face, causing her to become dizzy. He then grabbed the right side of the victim's face, causing her pain. The appellant continued to punch the victim approximately three to four times to the face, head and shoulder regions. The victim raised her arms to protect herself. The appellant then punched her again several times.
4 The victim at this point screamed out for help. She then moved away, alongside her motor vehicle and towards the garage door. The appellant followed and picked up a screwdriver with his right hand from a toolbox near the vehicle. The victim continued to move away. The appellant then said, 'I've had enough. I'm sick of you. I'm going to kill you' before grabbing the victim around the neck from behind with his left hand and with the screwdriver in his right. He then stabbed the victim to the right rear shoulder, inflicting a laceration which caused her discomfort. The victim turned and saw the appellant holding the screwdriver in his right hand, down by his waist. She feared for her life and pleaded with the appellant not to kill her and to take her vehicle and her money. He then threw the screwdriver down.
(Page 4)
5 The appellant then further approached the victim, who was crouched on the garage floor with her right arm raised to protect herself. The appellant grabbed the victim's head and bit the victim's upper arm, causing her extreme pain. There were in fact two bites at this stage, although only one was referred to when the facts were read. The bite marks to the victim's arm caused bruising and swelling, for which medical attention was sought.
6 At this point the son of the appellant and the victim entered the garage and attempted to intervene to stop the assault. The appellant told his son to get away several times. The victim continued to move away from the appellant and the appellant then removed a power cord from the roller door. The appellant continued to swear, saying words to this effect, 'You fucking idiot, you fuck'. The appellant was near the kitchen door area when he received a phone call and he then moved from the garage. At that point the victim fled through the garage door and out the front door, fearing for her safety.
7 The victim attended the Joondalup Health Campus, where she received medical attention. The appellant was then arrested by the police and told them words to the effect of 'this is a family issue'.
8 It was later clarified, as I have mentioned, that there were two bites which occurred at approximately the same time. Those bites and the stab with the screwdriver constituted the three aggravated assaults occasioning bodily harm. There was subsequently a dispute as to whether there had been a threat to kill. However, an application to withdraw a plea of guilty to the threat to injure charge was not pressed. In any event, as the magistrate pointed out, the charge laid was not a threat to kill, but a threat to injure. It appeared to be accepted that the appellant had made a threat of the latter type, though he had little recollection of what words had been used.
Proceedings in the Magistrates Court
9 The magistrate heard the plea and submissions on 8 August 2011. Counsel for the appellant before the magistrate submitted that the offences had occurred whilst the appellant was on a seven day methylamphetamine binge. He was described as having a serious drug problem. He was said to be deeply remorseful and ashamed for what he had done. The magistrate considered that he would be assisted by an oral pre-sentence report and the appellant was remanded in custody for that purpose until 10 August 2011.
(Page 5)
10 On 10 August 2011 a community corrections officer provided an oral pre-sentence report. The report included a summary of the circumstances of the offending as recounted by the appellant. It was significantly at odds with the admitted facts in a number of respects. In particular, the appellant denied punching his wife four times and said it was only twice. He denied stabbing her with the screwdriver. Rather, he said that a toolbox fell on his wife during the course of a scuffle between them. He said that his wife had hit him in the face with a sledgehammer, though he had not told the police this. He denied that his wife had been crouching down defensively, though he did admit to biting her.
11 Understandably, the magistrate had concerns that what the appellant had told the community corrections officer was inconsistent with his admission of the prosecution facts. Counsel for the appellant before the magistrate then said that the prosecution's statement of material facts had been read to the appellant and other than making a threat to kill, everything else was accepted. It appears to have been implied by this that the appellant was not seeking to challenge the prosecution facts. No submission to the contrary has been made to me on this appeal.
12 In these circumstances the denials made by the appellant to the community corrections officer could only be viewed as attempts by him to minimise his conduct. That was a factor which could relevantly bear upon the question of whether the appellant had an understanding of the seriousness of his conduct and was truly remorseful for it.
13 The appellant also told the community corrections officer that what had occurred was, in his view, a family matter. He did not think his wife should be fearful of him. He admitted to a history of arguing with his wife but said that these had 'mostly' been verbal arguments and 'not really physical altercations', or at least not to the extent of the current offences. He denied being under the influence of any drugs or alcohol, which again was inconsistent with the submissions in mitigation made on his behalf. However, I note in this regard that a reference from the appellant's brother refers to him using drugs and a belief that this was a factor in what occurred.
14 The oral pre-sentence report stated that the appellant had been experiencing a lot of stress at the time of the offences. Three months earlier he had lost his driver's licence and in consequence his job as a truck driver. The family then fell behind in mortgage payments. The appellant became worried about being able to support his family and about losing the family home.
(Page 6)
15 The magistrate was told that the appellant had been married to his wife for 16 years and that they have two children. As to the fact that his son had witnessed some of the assault, the appellant told the community corrections officer that he did not think his son would have been afraid or that it would have impacted on his son in a huge way.
16 The community corrections officer said that the appellant had been the subject of five previous community orders since 2002, the most recent three of which he had completed successfully. The appellant accepted in his discussions with the community corrections officer that he would benefit from a domestic violence program and expressed a willingness to participate in one.
17 In sentencing, the magistrate described the events as a brutal and sustained attack on the appellant's wife. He noted that the appellant had previous convictions for violent offences and concluded that the present offending was not, therefore, an aberration. His Honour expressed the view that there was a need for personal deterrence and concluded that the seriousness of the offending required an immediate sentence of imprisonment.
18 The magistrate imposed sentences in accordance with the following table:
Charge | Offence | Maximum penalty | Sentence imposed |
8777/11 |
s 313, Criminal Code (WA) |
$36,000 fine |
|
8778/11 | Threat to injure s 338B, Criminal Code (WA) |
| 4 mths imprisonment |
| Summary penalty: 18 mths imprisonment, $18,000 fine | |||
8779/11 |
s 317, Criminal Code (WA) |
|
cumulative |
3 yrs imprisonment, $36,000 fine |
(Page 7)
8780/11 |
s 317, Criminal Code (WA) |
|
cumulative |
3 yrs imprisonment, $36,000 fine | |||
8781/11 | Aggravated assault occasioning bodily harm s 317, Criminal Code (WA) |
| 4 mths imprisonment |
| Summary penalty: 3 yrs imprisonment, $36,000 fine | |||
Total sentence: 18 months imprisonment | |||
Grounds of appeal
19 There are nine grounds of appeal. It is not necessary to set them out here. It is sufficient to note the arguments that they raise.
20 Ground 1 asserts that the individual sentences were manifestly excessive. However, both in written and oral submissions it is apparent that the real complaint is not so much with the individual sentences but with the total aggregate sentence. It is the total sentence that is said to be too long and this is addressed in other grounds. Suffice to say that the individual sentences imposed were clearly within the appropriate range and no argument that those sentences were manifestly excessive could possibly succeed.
21 Grounds 2 to 8 refer to different aspects of the totality principle in that they argue that the total aggregate sentence is disproportionate to the total offending either because the totality principle was not properly applied or because the magistrate failed to give sufficient weight to factors favourable to the appellant. Ground 2 deals with the principle in general terms and I will return to this question later.
22 Before turning to the grounds which refer to aspects that it is said were not taken into account, it is important to refer to the factors which made these offences serious. First, the conduct was sustained. That is, it was not a case of a sudden and spur-of-the-moment act that was
(Page 8)
- immediately regretted. Rather, each of these offences formed part of a continuing attack upon the appellant's wife. The appellant did not desist after his first act of violence. Rather, he persisted, advancing on a victim who was not retaliating but rather endeavouring to defend herself. Secondly, three of the offences involved the infliction of injury; this is indicative of the ferocity of the attack. The stabbing with the screwdriver inflicted a small wound to the wife's back that is depicted in photographs that were provided to the Magistrate's Court. It is evident that this injury must have caused pain and discomfort. It must also have been terrifying for the victim. The other injuries, being bite marks, are perhaps less significant but were clearly caused by aggressive acts of violent domination. Thirdly, the offences were committed in the family home whilst the children of the appellant and his wife were at home. The children were 11 and 12 years old at the time. Given that on the facts the victim was screaming, it is unlikely the children were unaware of what was occurring; indeed, on the admitted facts the son endeavoured to stop the appellant towards the end of the events. The potential for psychological harm to children who witness domestic violence is well known. There was also the obvious potential for harm to children who might, understandably, seek to intervene in a violent attack.
23 As regards ground 3, the appellant asserts that the magistrate erred by failing to give sufficient discount for the appellant's plea of guilty and remorse. By use of the word 'sufficient' the appellant acknowledges that the magistrate did give express recognition to the plea of guilty and said he would take it into account. In such circumstances it is difficult to assert any express error; furthermore, the attribution of weight to the various factors relevant in sentencing is the very essence of discretionary judgment and ordinarily not quantified in sentencing. Accordingly, a ground expressed in these terms cannot in itself usually succeed, though the factor raised can, together with all the other factors, be considered when determining whether the sentence is manifestly excessive or the total sentence is disproportionate to the total criminality of the offending: see Vagh v The State of Western Australia [2007] WASCA 17.
24 In respect of the appellant's pleas of guilty, they were clearly an important factor justifying a reduction in the sentence that would otherwise have been imposed. A plea of guilty may be relevant in a number of ways and it may indicate an acceptance of responsibility and remorse for what has occurred. However even in the absence of remorse, a plea of guilty is deserving of a discount, as it is facilitative of the course of justice: see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. The appellant in this case has expressed remorse. This has
(Page 9)
- included an apology to his wife. However, the extent to which he has truly accepted responsibility for his actions is open to doubt given the denials to the community corrections officer of significant features of the conduct. In these circumstances the plea of guilty did not necessarily reflect remorse and it was open to the magistrate to give it less weight in those circumstances.
25 As regards ground 4, the appellant submits that the magistrate erred by failing to take into account that the offences constituted a single course of conduct. The implication in this ground is that all of the sentences should have been made concurrent. This ground does not properly reflect the so-called 'one transaction rule'. Where offences have occurred at the same time as part of the same course of action, there are often good grounds for approaching the sentencing on the basis that individual sentences of imprisonment should be concurrent. It is, however, no more than a good working rule and the ultimate question is always whether the total effective sentence is a proper reflection of the total criminality: see R v Faithfull [2004] WASCA 39. It is certainly not the case that offences that are committed close in time as part of the same conduct should always or necessarily be concurrent. In the present case each of the offences addressed specific features of the conduct. The course of conduct could be viewed as having distinct features and as increasing in seriousness over time. It was open to the magistrate to impose penalties, some of which were cumulative.
26 As to ground 5, the appellant submits that the magistrate misapplied totality in that he considered that it required that the sentence not be 'too crushing' rather than merely crushing. In my view, this is a matter of semantics. The issue in regard to whether a sentence is crushing is that a sentence should not be so long as to extinguish any hope of the offender of a life beyond prison. Whether the word 'too' is added does not add or detract meaningfully from this test. In any event, this was not a sentence to which that limb of the totality principle could really apply. It seems to me that when read in context his Honour was not applying the crushing limb but the proportionality limb of the totality principle. This aspect of the totality principle requires that the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
(Page 10)
27 The appellant also argues that by referring only to crushing, the magistrate must have erred by failing to take the proportionality limb into account. The answer to this is to see what the magistrate did. He said he would make some sentences concurrent for totality reasons; that is what he did. It is plain that he took that course because otherwise the total effective sentence would be too long and not proportional to the total criminality; that is to say, he applied the totality principle in the way that the appellant submits that he should have and accordingly this ground is without merit. Whether or not he was correct as to the final aggregate sentence, is, however, another matter and one I will return to later.
28 As to ground 6, it is said that the magistrate erred by giving the appellant's criminal record undue weight in circumstances where previous conduct was not relevantly similar in that it did not involve domestic violence. What the magistrate said in this regard appears in the transcript of the proceedings of 10 August 2011. His Honour said:
[The appellant] was convicted in February 2006 of assaulting a public officer and received an immediate gaol term and in December 2003 he received a gaol term, which was appealed, and on appeal, it appears the gaol term was reduced, but nevertheless received a gaol term for assault occasioning bodily harm. As well, [the appellant's] record suggests quite an extensive array of other offending in drug-related matters. (ts 9 - 10)
29 Then further in his remarks his Honour said:
[The appellant's] criminal record is a relevant factor in terms of sentencing as it shows that the offences before me today are not aberrations. What this offending shows is that there is a continuing attitude of disobedience to the law that requires the imposition of sentences that might serve as a personal deterrent to [the appellant]. (ts 10)
30 Those comments do not reveal that the magistrate was treating the record as aggravating or that a greater punishment than the present offences deserved was appropriate. Rather, it was to recognise that there was an absence of mitigation in that the appellant did not have past good character. He had committed offences of a violent nature previously and whatever punishment he had received had clearly not sufficiently deterred him.
31 There is little merit, in my view, in distinguishing past offending by saying past offences of violence are irrelevant because they were not committed in domestic circumstances. The circumstances may have been different but they were nonetheless offences involving violence. They do have some relevance, though not necessarily as showing a particular
(Page 11)
- tendency. The magistrate was entitled to take the past conduct into account as being an absence of mitigation as to past good character and there is no error in that regard.
32 In regard to ground 7, the appellant submits that the magistrate erred by not having regard to the appellant's longstanding relationship with his wife, the fact that they have dependent children and the likely effect of imprisonment on the family and on prospects of reconciliation. In his sentencing remarks the magistrate did not expressly refer to these factors but that does not mean that he overlooked them. His Honour did refer to a letter he had received from the appellant's family which he said contained a plea not to imprison the appellant.
33 The appellant has sought to rely upon an affidavit of the victim filed on the appeal, which was admitted without objection from the respondent. In that affidavit the appellant's wife states that the imprisonment of the appellant has caused her and her children extreme hardship. In particular, she says that the mortgage on the family home is in arrears and that there is some prospect that the mortgagee bank will sell it. She says that if the appellant is released and obtains work, she hopes that the arrears could be paid. There is, of course, no certainty that he would get work. It must also be noted that the appellant had lost his job before being imprisoned and debts had already accrued at that time. The appellant's wife also says that she has visited the appellant and that he has apologised to her and expressed remorse. She also says that she has health issues and finds it difficult to cope with the children without the appellant's assistance. It should be noted that the appellant and his wife are migrants and that she has no wider family of her own in Australia.
34 The weight to be given to the impact of sentences on family members of an offender is usually not great. The consequences of imprisonment are the responsibility of the offender. Offenders cannot expect leniency because their just punishment impacts on others. Furthermore, the wishes of victims of domestic violence for reconciliation has to be seen in context. As McLure P said in State of Western Australia v Cheeseman [2011] WASCA 15:
The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence. [3]
35 Thus, whilst I accept that impact on the family may be taken into account in some cases, it is not a matter that should have been given great weight in this case. There is certainly nothing unusual about the impact
(Page 12)
- that would have justified the magistrate lowering the sentence below that which would otherwise be appropriate.
36 As to ground 8, the appellant submits that the magistrate failed to give sufficient weight to the fact that the appellant had successfully completed three community based orders in the past and was considered suitable for another. Suitability does not mean that such an order is appropriate in all the circumstances. It simply means that the community corrections officer considers that the particular offender has ability to undertake such an order if it were to be imposed. Whether it is the correct disposition depends on an assessment of all the relevant factors by the magistrate.
37 In some respects, the mitigatory effect of past completion of community orders is diminished by the fact of reoffending. Success is not only to be measured by completion of the term of the order without breach. It should also be measured by how well an offender has taken on the lessons to be learned from completion of an order, and an appreciation by the offender of the leniency afforded by the court. Subsequent reoffending, even after the term of the order has expired, must put in some doubt whether the order was successful in terms of bringing about attitudinal and behavioural change. In any event, the past conduct on community orders was put before the magistrate in the oral pre-sentence report on 10 August 2011, and there is no reason to suppose that he did not have regard to it.
38 Before turning to an overall consideration of the totality question, I should briefly refer to the remaining ground, ground 9. The appellant submitted that the magistrate erred by taking into account that the children of the offender and the victim were present. This is said to be an error for two reasons. First, that the facts did not indicate that the children were present and, secondly, this was not charged as a circumstance of aggravation.
39 As to the first issue, I have already referred to the facts that were alleged and admitted and they clearly refer to the children being present on the premises and to the victim's son entering the garage towards the end of the events and endeavouring to intervene. There was also on 10 August 2011 an exchange between the magistrate and counsel for the appellant in which the appellant's counsel stated that his client accepted that his children were present. The magistrate's findings in this regard in his sentencing remarks were simply these, and I refer to page 11 of the transcript of 10 August:
(Page 13)
- I am conscious of the serious and sustained attacked upon your defenceless wife in the presence of your 11 and 12-year-old children.
40 There seems to be no doubt that the children were on the premises, nor that at one stage the appellant's son tried to intervene. Whether both children witnessed the events is not clear. However, it is equally unclear that the magistrate found that they did. That both children were present on the premises, whether they were direct witnesses or not, was relevant to their potential exposure to this violence and to the risk of harm to them.
41 As to the second issue, each of the assault offences alleged as a circumstance of aggravation that the appellant was in a family and domestic relationship with the victim: see s 221 of the Criminal Code (WA). This exposed the appellant to a higher maximum penalty on conviction. That the assault offences were committed in the presence of children is also a possible statutory circumstance of aggravation under s 221. It was not alleged in the charge, but even if it had been it would not have changed the applicable maximum as the offence was already said to be an aggravated one by reason of the domestic and family relationship. Nevertheless, the presence of the children on the premises and the son (at least) in the garage where the assaults took place formed part of the admitted facts. It is plain from s 7(3) of the Sentencing Act 1995 (WA) that it was open to take those facts into account even though not included as a formal circumstance of aggravation in the charge itself. For those reasons ground 9 cannot succeed.
Totality - Ground 2
42 Returning then to the overall question of totality, the real question is whether the total aggregate sentence was an appropriate reflection of the total criminality in this case. An assessment of the conduct must take into account matters personal to the offender. These include that this was not a case where there was a history of domestic violence, either involving the same or different victims. The circumstances were serious and justified a sentence of immediate imprisonment. This was conceded by the appellant's counsel. The question is whether the aggregate sentence was too long.
43 Consistency in sentencing is always a desirable objective, though comparing cases can often be difficult because of the wide range of circumstances in which offences of this type can occur. In examining other cases the appellant points out that on the facts of many of them a series of assaults committed at the same time have been charged as one as is permitted by sch 1, cl 8(1) of the Criminal Procedure Act 2004 (WA).
(Page 14)
- Bearing that in mind, the fact that the appellant here faced multiple charges of assault whereas others have faced one charge is not always an appropriate point of distinction. Taking that into account, comparisons with other cases indicate that the total sentence here is a particularly high one.
44 In Elliott v Blanchard [2007] WASC 289 the appellant pleaded guilty to one count of aggravated assault occasioning bodily harm against a woman with whom he had been in a relationship for two months. The appellant had been drinking alcohol for most of the day of the assault. The victim went to the appellant's house and an argument ensued. The appellant pushed the victim and slapped her repeatedly across the face. The appellant then grabbed the victim around the throat until she nearly lost consciousness. The appellant threw the victim onto a bed and applied pressure to her throat until she again nearly passed out. He continued to slap her repeatedly across the face. Eventually the appellant calmed down and the victim attempted to pacify him by cooking him dinner. The victim later took an opportunity to escape the appellant's house. The appellant chased her and attempted to enter her car as she was leaving. The appellant was sentenced to 12 months' imprisonment. It was his first violent offence and he had until then been generally of good character. On appeal the sentence was reduced to one of 10 months and 1 week's imprisonment on the basis that the appellant's plea of guilty had not been taken into account.
45 In Forward v Bower [2007] WASC 205 the appellant was convicted of a number of offences arising in the context of the breakdown of his de facto relationship with the victim. Amongst the offences were two of aggravated assault occasioning bodily harm. The first assault was committed in breach of a violence restraining order. In respect of that offence the appellant approached the victim at a hotel and after speaking to her bit her on the cheek. The second assault occurred a month later when the appellant approached the victim at another hotel, again breaching a violence restraining order and protective bail conditions. On this occasion the appellant was persuaded by the victim's friends to leave but returned 10 minutes later and grabbed the victim by the throat and forced her to the ground. The victim hit her head and bruised her elbow. The appellant was 58 at the time of the offending, had pleaded guilty and had no relevant prior convictions. He was sentenced to 18 months' imprisonment for the first assault and 12 months' imprisonment cumulative for the second assault. On appeal the individual sentences were not disturbed but the order that they be served cumulatively was set
(Page 15)
- aside and the sentences were ordered to be concurrent. This had the effect of reducing the total sentence from 30 to 18 months' imprisonment.
46 In Wallam v Dent [2008] WASC 170 the appellant and the victim had been in a de facto relationship for some 20 years. In breach of a police order the appellant went to the victim's house and abused her for calling the police the previous evening. The appellant punched the victim several times in the face causing a laceration that required three stitches. He then took a golf club and struck the victim six times on the back causing the golf club to break. The appellant was 39 at the time of the offending. He pleaded guilty to aggravated assault occasioning bodily harm. The appellant had a substantial record including breaches of violence restraining orders and assault occasioning bodily harm. On appeal his sentence was reduced from 12 months' imprisonment to 10 months' imprisonment due to a factual error made by the magistrate.
47 In Paskov v Hull [2008] WASC 163 the appellant and the victim had been in a de facto relationship for two months. The appellant pleaded guilty to two counts of aggravated assault occasioning bodily harm. The first assault had occurred one evening after an argument which culminated in the victim packing her things to leave. The appellant pushed the victim into a window causing it to smash. He then dragged her outside, kicked her three times in the back and rib area and punched her in the head a number of times causing her to black out. The second assault occurred some six months later. The appellant dropped the victim on the ground and kicked her repeatedly in the ribs before using his left ring finger to gouge her left eye. This left the victim with a bruised and swollen eye and a cut to the eyeball. The appellant was sentenced to 12 months' imprisonment for each of the assaults, those sentences to be served cumulatively. The appeal against sentence was dismissed.
48 In Morgan v Kazandzis [2010] WASC 377 the appellant was an Aboriginal man in his 40s living in remote community. He had a criminal history which included offences of burglary and aggravated assault occasioning bodily harm but had not previously been sentenced to any term of imprisonment. He appealed convictions and sentences imposed for three assault offences following two separate hearings in 2009. The first two offences of aggravated assault occasioning bodily harm were committed on the appellant's much younger, pregnant de facto partner. Both parties were affected by alcohol at the time of each offence. Another conviction for aggravated common assault was committed on a different woman. The assaults on the de facto in that case involved slapping her in the face, kicking her in the head and stomping on her head
(Page 16)
- while she was on the ground. The appellant also lay on top of her with his hands around her head and face and blocked her breathing. In the second offence the victim sustained lacerations, bruising and some bleeding. The magistrate who sentenced the appellant in that case characterised the offences as vicious assaults which warranted immediate terms of imprisonment. The appellant was sentenced to 8 months and 15 months' imprisonment respectively (to be served concurrently) for the first two offences and 9 months' imprisonment cumulative for the third offence, making a total effective sentence of 24 months' imprisonment. An appeal against sentence was partly allowed in respect of the third offence by ordering partial concurrency of the 9 month sentence of imprisonment on that offence for reasons of totality, the effect being to reduce the total effective sentence to one of 18 months' imprisonment.
49 In Stokes v Auckland [2012] WASC 2 the appellant and his de facto partner had an argument after leaving a parked car. The victim was walking away from the appellant when he approached her and began punching her in the head. He did this three or four times until the victim fell over. The appellant then punched the victim with an uppercut style punch. He then dragged her by the hair to a nearby tap and began washing the blood off her head. He then punched the victim another three or four times in the head and told her to get back into the vehicle. The appellant had committed two previous aggravated assaults upon the same victim for which he had received suspended sentences of imprisonment. The most recent assault had occurred during the term of the suspended imprisonment order. The magistrate imposed a sentence of 16 months' imprisonment and activated the two suspended sentences of imprisonment of 6 months each, one of which was made cumulative, making a total effective sentence of 22 months' imprisonment.
50 Whilst a sentence of 18 months was upheld in Forward v Bower, that was in the context of two assaults six months apart where the sentence for the second offence was made wholly concurrent on appeal. In those circumstances 18 months' imprisonment was the effective total sentence. There were also other offences in that case. That clearly sets that case apart from the present one.
51 On the available information the highest sentence for a single incident of assault occasioning bodily harm in circumstances comparable to the present is the 16 months' imprisonment in Stokes. In that case however there had been previous assaults on the same victim and the last offence was committed in breach of two suspended sentences for similar conduct. The facts of that case and the present are broadly comparable
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- though the use of the screwdriver and the presence of the children were arguably aggravating features here. However, those factors are offset by the recidivism of the offender in Stokes and his apparent contempt for the law.
52 Of course, even where a range of sentences can be established that does not set the limits of sentencing discretion. There is always the potential for offences to be of such seriousness as to call for a sentence outside the usual range. However, as serious as this offending was, it does not seem to me to be such as to justify a higher than usual sentence, that is, a sentence beyond the usual range. It clearly deserved immediate imprisonment and the sentences could be structured in several different ways. It was not necessarily wrong to impose an element of accumulation. However, the end result should have been one that properly reflected the overall criminality. In my view, it did not do so in this case and the total sentence was too high.
53 It was suggested to me by counsel for the appellant that a sentence of around 10 months in total would have been appropriate. I cannot accept that. The use of the screwdriver, even if the wound was small, was particularly serious. The persistence of the attack and the different means used by the appellant to assault the victim place this conduct into the more serious category of offending. In my view, the appropriate total sentence is one of 15 months' imprisonment.
54 In coming to that conclusion, I have recognised that I am now resentencing and therefore able to take into account the fact that since the original sentences were imposed the appellant has expressed remorse, apologised to his wife, expressed a wish to assist her with the mortgage and the children, and has her support. I am also told by counsel that enforced abstinence from drugs in prison has strengthened the appellant's resolve not to resort to drugs in the future.
55 For those reasons the orders of the Court will be that ground 2 will be allowed, the appeal will therefore be allowed, the sentences imposed by the magistrate will be set aside and in lieu thereof I will impose sentences that will have the effect of reducing the penalty to 15 months. I will do that by reducing the sentence in respect of the first offence, that is the common assault, charge number 8777 of 2011, from four months to one month. The other sentences will remain unchanged. The sentence will be backdated to 2 August 2011, and I order that the appellant be eligible for parole.
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