Miorada v The State of Western Australia

[2022] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MIORADA -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 143

CORAM:   BUSS P

MAZZA JA

HALL JA

HEARD:   18 OCTOBER 2022

DELIVERED          :   27 OCTOBER 2022

PUBLISHED           :   1 NOVEMBER 2022

FILE NO/S:   CACR 87 of 2022

BETWEEN:   OSCAR SAMUEL MIORADA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   TROY DCJ

File Number            :   IND 310 of 2022

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence of immediate imprisonment manifestly excessive - Whether open to impose a conditionally suspended sentence of imprisonment - Youthful offender with good prospects of rehabilitation

Legislation:

Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Sentence imposed by primary judge set aside
Appellant resentenced to 8 months' imprisonment conditionally suspended for a period of 14 months

Category:    B

Representation:

Counsel:

Appellant	:	S F Rafferty
Respondent	:	R P Arndt

Solicitors:

Appellant	:	Seamus Rafferty Barrister & Solicitor
Respondent	:	Director of Public Prosecutions (WA)

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

Ainsworth v D (a child) (1992) 7 WAR 102

Ali v The State of Western Australia [2013] WASCA 55

Cartwright v The State of Western Australia [2010] WASCA 4

Castrilli v The State of Western Australia [2019] WASCA 135

Clarke v The State of Western Australia [No 2] [2013] WASCA 197

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

HNA v The State of Western Australia [2016] WASCA 165

Holden v The State of Western Australia [2009] WASCA 50

Impicciatore v The State of Western Australia [2020] WASCA 33

Marchesano v The State of Western Australia [2017] WASCA 177; 269 A Crim R 169

Pomana v The State of Western Australia [2020] WASCA 204

Shi v The State of Western Australia [2020] WASCA 197

The State of Western Australia v Bropho [2013] WASCA 44

The State of Western Australia v Zhuang [2021] WASCA 56

Ugle v The State of Western Australia [2012] WASCA 104; 223 A Crim R 115

Wiltshire v Mafi [2010] WASCA 111

REASONS OF THE COURT:

1. The appellant was convicted on his plea of guilty of one count of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code (WA). He was sentenced to 9 months' immediate imprisonment. He sought leave to appeal against that sentence.

2. There is one ground of appeal.  It is that the sentence imposed was manifestly excessive as to type.  In essence it is submitted that, in the particular circumstances of this case, it was not open to the sentencing judge to come to the conclusion that a conditional suspended sentence was excluded as an option.  The circumstances relied on include the fact that the appellant was aged 18 at the time of the offence, pleaded guilty and had good prospects of rehabilitation. 

3. On 27 October 2022, we made orders allowing the appeal, setting aside the sentence and resentencing the appellant.  These are our reasons for making those orders.

The facts

1. On the evening of Thursday, 1 April 2021, the appellant was in Claremont.  At about 10.20 pm he went to the Hungry Jack's restaurant on Stirling Highway.  There he met a male friend and they began talking to a 15‑year‑old girl.[1] 

   [1] Sentencing ts 9.

2. The victim of the offence, a 16‑year‑old boy of similar build to the appellant, was also at the Hungry Jack's restaurant with friends.  He approached the appellant, together with one of his friends, because he knew the girl to whom the appellant was talking.  The friend of the victim asked what the appellant and his friend were doing talking to a 15‑year‑old girl.  Both men took exception to the comment.  The appellant then advanced towards the victim's friend.  The victim tried to separate the two by placing one hand on the appellant's chest and pushing him away.  The victim said, 'Mate, just chill out'.[2] 

   [2] Sentencing ts 9 - 10.

3. The appellant continued to act aggressively and was argumentative.  A female Hungry Jack's security officer appeared and separated the appellant and the victim.  The appellant then sat down on steps approximately 5 m away from the victim.  The victim and his friend continued talking.  The appellant remained seated for a short period and stared at the victim.  The appellant asked the victim, 'What are you looking at?'  The victim then said, 'Mate, just chill out and sit there.  You will do nothing'.[3]

   [3] Sentencing ts 10.

4. After a brief pause, the appellant stood up, walked to where the victim was standing and punched him with a clenched right fist to the side of the face.  The victim did not retaliate, and his hands remained by his side.  CCTV footage provided to the court at sentencing shows that the victim took a step or two backwards after the punch but did not fall to the ground.  The security officer attempted to apprehend the appellant, but he ran off across the carpark.[4]

   [4] Sentencing ts 10.

5. The incident happened the evening prior to the Easter weekend.  On the following Tuesday, 6 April 2021, the victim attended at a dental clinic in East Fremantle due to soreness to his left jaw.  An x‑ray was taken and it was ascertained that he had a fracture of the jaw.  The following day, he attended a hospital for surgery.  A metal plate was required to repair the left mandible fracture.  The victim's injuries would likely not have healed correctly without surgery and treatment.[5]

   [5] Sentencing ts 10.

Personal circumstances

1. The appellant was aged 18 at the time of the offence, having been born on 22 June 2002.  He was aged 20 as at the date of sentencing. 

2. The appellant was born in Perth and was living with his family at the time of the incident.  He has an older brother and sister and a younger sister.  He continues to have the support of his family and his mother and brother wrote references for him. 

3. According to the pre‑sentence report, the appellant had an unremarkable childhood except for the fact that his father has struggled for many years with an alcohol addiction.  Shortly before the offence his father was due to be admitted to a residential rehabilitation facility.  The appellant reported that this was a stressful time for him, and it had been difficult for him to watch his father's deterioration.  By the time of sentencing, the appellant's father was no longer drinking alcohol, but still had some underlying mental health issues. 

4. The appellant completed high school to year 12, which included a Certificate IV in business management.  He then undertook study for a diploma in finance and mortgage broking and had plans to attend university to study psychology.  He has worked part‑time as a labourer for a commercial fishing company and also undertaken work experience with various finance companies. 

5. The appellant told the pre‑sentence report author that he started drinking alcohol, in the form of full-strength beer, when attending parties from about 17 years of age.  Upon turning 18 years of age, his drinking increased in frequency to about two to three nights per week, including binge‑drinking spirits. 

6. The appellant conceded that he was heavily intoxicated on the night of the offence.  He had been drinking at a friend's house and at a bar in Claremont before attending the Hungry Jack's restaurant.  After fleeing the scene of the incident, he went home by rideshare and passed out in the car.  A friend had to help him out of the vehicle as he was too intoxicated to do so by himself.

7. During the interview for the pre‑sentence report, the appellant maintained that his behaviour was out of character and linked to excessive alcohol consumption on the day of the offence.  Following the offence, he had reduced his drinking and expressed a willingness to attend alcohol counselling. He acknowledged the seriousness of the offence and accepted full responsibility.  He reported that he had acted impulsively in response to the verbal altercation and said that he was remorseful for the pain suffered by the victim. 

8. The pre-sentence report noted that this was the appellant's first serious offence and, having regard to his young age and willingness to engage with community supervision, he was considered suitable for a community‑based disposition with program and supervision requirements.  It was suggested that a program requirement would allow the appellant to be linked with intervention programs targeted at decision‑making and that a supervision requirement would ensure that his progress, alcohol use and peer associations were closely monitored.

9. The appellant does not have a significant prior criminal record and has committed no previous offences of violence.  His record consists of an offence of behaving in a disorderly manner and an offence of driving under the influence of alcohol (which had occurred approximately two weeks prior to this offence).  For the driving offence, the appellant was fined $900 and disqualified from holding a driver's licence for 10 months. 

10. A number of character references from family, friends and employers attested to the appellant's good personal qualities, including a willingness to work hard to better himself.  His mother also referred to the appellant's family life unravelling when his father, who had been an alcoholic for more than 10 years, became unable to continue functioning.  This had an impact on the family business and on home life.  The appellant's mother also said that she sought counselling for the appellant immediately after the offence and, as at the date of sentencing, he was awaiting sessions with Holyoake to address issues arising from the effects of his father's alcohol abuse and also how his own alcohol use had negatively impacted on him.

11. The appellant was originally charged with one count of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Criminal Code.  Following negotiations with the State, that charge was discontinued and substituted with the charge of assault occasioning bodily harm.  The appellant entered a plea of guilty to that charge soon after the change was made.  It was accepted on sentencing that this plea was entered at the first reasonable opportunity.[6]

    [6] Sentencing ts 57.

Victim impact statements

1. The victim said that said that he was initially in shock after being punched.  After the shock wore off, while trying to eat, he could feel that his jaw was not lining up.  He could not finish his meal as it hurt so much.  Over the weekend he took pain medication and used ice compacts.  He went to a dentist after the weekend and was referred for a scan.  After it was determined that his jaw was fractured, he had surgery to insert a metal plate.

2. The victim said that after the surgery he had to stay home on a strict medication schedule.  It was school holidays and he missed out on spending time with his friends.  About eight months later, he had further surgery to remove the plate.  He had complications after this surgery, which resulted in more pain and a restricted diet.   

3. The victim said that the offence had impacted on his education, in that when he returned to school he felt unmotivated and struggled to study.  He missed out on playing rugby for a period, which was a big part of his life.    There was also an impact on his mental health, in that he felt anxious, powerless and overly reliant on his mother.  Since the offence he has been more cautious and self-aware when in public.    

4. The victim's mother also submitted a victim impact statement.  She also referred to the impact of the injury and the treatment.  The offence has caused her to be more vigilant and protective of the victim and this has created tension between them.  She detailed the stress caused by the prosecution process and the delays in bringing the matter to a conclusion.

Sentencing remarks

1. The appellant was sentenced on 1 September 2022.  The sentencing judge made detailed sentencing remarks before sentencing the appellant to 9 months' immediate imprisonment with an order that he be eligible for parole.

2. As the ground of appeal does not allege any express error by the learned sentencing judge, it is unnecessary to set out the sentencing remarks in any detail.  It is sufficient for present purposes to note that his Honour made the following undisputed findings:[7]

   [7] Sentencing ts 56 - 60.

   (1)The objective seriousness of the offence is informed by its commission late at night in a public place, the lack of any real provocation, and the injuries sustained by the victim which are demonstrative of a significant level of force.

   (2)The offence was not planned.  It was spontaneous to an extent.

   (3)The victim was not in a position of enhanced vulnerability, in the sense that he was not looking away at the time of the punch.

   (4)The appellant's reaction was grossly disproportionate to the actions of the victim.

   (5)The appellant is not 'an especially powerful individual'.  He weighed approximately 58 kg at the time of the offence.  He does not have any expertise in boxing or any of the martial arts.

   (6)A punch of this nature carries with it the risk that the victim could fall to the ground, causing a more serious injury if the victim's head collides with a hard surface. 

   (7)The appellant pleaded guilty at the first reasonable opportunity. However, bearing in mind the strength of the State case, the appropriate discount under s 9AA of the Sentencing Act 1995 (WA) was 20%.

   (8)Although the appellant was not immediately remorseful, the sentencing judge accepted that his subsequent expressions of remorse were genuine.   

   (9)The prior offence of drink driving counted against the appellant being considered as of good character.  However, there were no prior offences of violence, and the present offence was a very serious escalation in offending behaviour.

   (10)The appellant was aged 18 at the time of the offence, and his youth and immaturity were important mitigating factors.

   (11)The appellant had not offended in any way since the incident and the risk of the appellant reoffending in this way again was relatively low.  He had indicated a willingness to take steps towards rehabilitation.

   (12)The appellant had a good work ethic, his studies were progressing well and he had concrete plans for the future.

   (13)At the time of the offence, the appellant was subject to stresses as a result of his family circumstances.

Ground of appeal

1. There is one ground of appeal.  It is that:[8]

   The sentencing judge erred in imposing a sentence that was manifestly excessive as to type.

   [8] AB 7.

2. In essence, it was submitted by the appellant that it was not reasonably open in the circumstances of this case to exclude as an option a conditional suspended sentence of imprisonment and that, in those circumstances, imposing immediate imprisonment was manifestly excessive.[9]

   [9] AB 9.

Relevant legal principles

1. An allegation that a sentence is manifestly excessive is an allegation of implied error.  This court is not entitled to intervene merely because it would have imposed a different sentence to that of the sentencing judge.  Intervention is only possible if the sentence is plainly unjust or unreasonable.

2. The determination of whether a sentence is manifestly excessive requires that the sentence be viewed from the perspective of the maximum sentence prescribed by law for that offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender.

3. The range of sentences customarily imposed for an offence does not establish the limits of a sound exercise of sentencing discretion.  Sentences imposed in comparable cases provide a yardstick for ensuring broad consistency in sentencing.  However, this has to be understood in the context that there is scope for significant variations in relevant sentencing factors and there is no single correct sentence.  What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

4. A sentence may be manifestly excessive because the wrong type of sentence has been imposed.[10] Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and in all of the circumstances, to be positively satisifed that all the sentencing options listed before that type of sentence in s 39(2) of the Sentencing Act were not appropriate.[11]

   [10] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J) .

   [11] HNA v The State of Western Australia [2016] WASCA 165 [30].

5. A sentence of immediate imprisonment is the final option and cannot be imposed unless the court is satisfied that it is not appropriate to impose  any other sentence.[12]  In particular, immediate imprisonment cannot be imposed if conditional suspended imprisonment is an appropriate option.  In determining whether to exercise the power to suspend a term of imprisonment, the court must look to all matters relevant to the circumstances of the offence and the personal circumstances of the offender.  The discretion to impose a suspended sentence of imprisonment is not confined by considerations relating to rehabilitation, though that may be an important factor in a particular case.  Nonetheless, there may be cases that are so serious that an immediate sentence must be imposed, notwithstanding that the offender has good prospects of rehabilitation.[13]

   [12] Sentencing Act 1995 (WA)s 39(3).

   [13] Dinsdale [18], [26] (Gleeson CJ and Hayne J), [84], [85] (Kirby J); Cartwright v The State of Western Australia [2010] WASCA 4 [8] (McLure P, Owen & Wheeler JJA agreeing); Shi v The State of Western Australia [2020] WASCA 197 [39].

6. Ordinarily, an offender's youth is a significant mitigating factor.  There are a number of reasons underpinning that principle, including:

   1.A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person.  Youthful offenders are often less able to exercise mature reflection and proper judgment and this is relevant in assessing their level of moral culpability. 

   2.Youthful offenders are often more capable of rehabilitation.  It is more likely that behavioural issues and causative factors that have contributed to offending can be successfully addressed in a young offender than in an older offender who may have become more entrenched in their habits.  Thus, concerted efforts to achieve the rehabilitation of a young offender will often be in the interests of the offender and the community generally. 

   3.The potential consequences of imprisonment on a youthful offender may be greater and there is a risk that imprisonment will corrupt rather than rehabilitate a young person.  This risk is particularly relevant in the case of an offender who has never previously been imprisoned.

   4.Because young offenders are often impulsive and lack judgment, they may not be suitable vehicles for general deterrence.  That is, general deterrence assumes a level of rationality that may not be a feature of a young offender's conduct.  This may make it inappropriate to impose a sentence on a young person that incorporates an exemplary component.

   Notwithstanding these considerations, a sentence of immediate imprisonment may be required for a youthful offender in order to properly reflect the objective seriousness of the offending, the need to protect the public, and the need for personal and general deterrence. [14] 

   [14] Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing); Ugle v The State of Western Australia [2012] WASCA 104; 223 A Crim R 115 [71] (Buss JA, Pullin JA agreeing); The State of Western Australia v Bropho [2013] WASCA 44 [45] (Buss JA, McLure P & Mazza JA agreeing); Marchesano v The State of Western Australia [2017] WASCA 177; 269 A Crim R 169 [213] (Buss P, Mazza JA agreeing).

Merits of the appeal

1. The critical question in this case is whether the sentencing judge was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend, wholly or partly, the term of imprisonment.  If the sentencing judge was not entitled to be so satisfied, then the imposition of an immediate sentence of imprisonment was manifestly excessive. 

2. In order to answer that question, it is necessary to consider the maximum statutory penalty, the standards of sentences imposed for this type of offence, the seriousness of the offence and the personal circumstances of the offender.

3. The maximum penalty for the offence of assault occasioning bodily harm is imprisonment for 5 years:  Criminal Code, s 317(1).

4. There is no established sentencing range for the offence of assault occasioning bodily harm due to the wide range of circumstances in which it can be committed.  Further, although the sentences in other cases are relevant for the purposes of achieving broad consistency, ultimately, each case must be decided on its own particular set of facts and circumstances. 

5. The appellant referred in submissions to a number of cases which were suggested as being comparable.  Some were the decisions of single judges on appeal from sentences imposed in the Magistrates Court.  That is because the offence of assault causing bodily harm is one that can be dealt with summarily.  Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome.  In the case of offences against the law of Western Australia, this is done through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance.  See Hili v The Queen;[15] Impicciatore v The State of Western Australia;[16] Pomana v The State of Western Australia[17] and The State of Western Australia v Zhuang.[18]

   [15] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56].

   [16] Impicciatore v The State of Western Australia [2020] WASCA 33 [279].

   [17] Pomana v The State of Western Australia [2020] WASCA 204 [67].

   [18] The State of Western Australia v Zhuang [2021] WASCA 56 [111].

6. The other cases referred to by the appellant were Castrilli v The State of Western Australia,[19] Wiltshire v Mafi,[20] Holden v The State of Western Australia,[21] Ali v The State of Western Australia[22] and Clarke v The State of Western Australia [No 2].[23]  It is unnecessary to analyse the facts of those cases in detail.  Each case turned on its own particular facts.  In some cases, the injuries suffered by the victim were arguably more or less serious than in the present case.  Mitigating factors, including whether the offender pleaded guilty, also varied. 

   [19] Castrilli v The State of Western Australia [2019] WASCA 135.

   [20] Wiltshire v Mafi [2010] WASCA 111; 211 A Crim R 326.

   [21] Holden v The State of Western Australia [2009] WASCA 50.

   [22] Ali v The State of Western Australia [2013] WASCA 55.

   [23] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.

7. In Holden, Wheeler JA, whilst acknowledging that it was difficult to discern a range because of the great variation of the circumstances of the cases, noted that sentences ranging from 6 months' suspended imprisonment to 2 years' immediate imprisonment have been imposed in cases involving a plea of guilty.[24]  This does not reveal an established range. Rather, it shows that sentences can, quite properly having regard to the particular circumstances of each case, vary widely.

   [24] Holden [43].

8. It is undoubtedly true that drunken acts of violence in public places are unacceptable and must be firmly discouraged.  General deterrence will usually be an important sentencing consideration in respect of such offences.  However, that does not mean that a sentence of immediate imprisonment will always be appropriate.  Much depends on the relative seriousness of the offence and the personal circumstances of the offender.

9. In this case, the offence was a moderately serious offence of its type.  The offence was an impulsive act which involved no planning or forethought.  The assault was constituted by a single punch; it was not a sustained or persistent attack.  The punch was delivered with sufficient force to cause the injury but did not cause the victim to lose consciousness or fall to the ground. The injury inflicted was serious in that it involved a fracture that caused pain and discomfort and required surgical treatment, but it did not require immediate emergency treatment.  The victim was younger than the appellant, but of a similar build and not especially vulnerable at the time of the offence.  The appellant's act was essentially unprovoked and likely caused by his state of intoxication.

10. As to the appellant's personal circumstances, the most important factor was his youth. He was 18 at the time of the offending and had committed no serious offence previously.  Importantly, he had never before been sentenced to a term of imprisonment.  The impact of a term of immediate imprisonment on such a young person should not be underestimated.  The appellant had good prospects of rehabilitation and was considered at low risk of re-offending.  Whilst intoxication is not a mitigating factor, it was evident that alcohol was a significant contributing factor that was capable of being addressed through counselling and programs.   The appellant had pleaded guilty at the first reasonable opportunity, accepted responsibility, and expressed remorse.

11. Whilst there were some factors that could count against the appellant, such as the fact that he ran away after the punch and that he had committed a driving offence involving alcohol only two weeks earlier, the significance of these must be seen in the context of his youth. That he acted impulsively on the night and failed to exercise appropriate judgment in dealing with alcohol were likely aspects of his immaturity.

12. Given all of the circumstances referred to, particularly the appellant's youth, it was not open to the sentencing judge to be positively satisfied that it was not appropriate to conditionally suspend the term of imprisonment.  The circumstances of the offence, though serious, were not so serious as to exclude a conditionally suspended sentence, having regard to the youth of the appellant and the other mitigating factors in his favour. 

13. A sentence of conditional suspended imprisonment was an appropriate option in the circumstances of this case.  Such a sentence remains a serious punishment.  It incorporates a strong incentive to comply and be law-abiding, bearing in mind the risk that breaches will result in the suspended sentence being activated.  Such a sentence is also better adapted than a short term of immediate imprisonment to achieving the rehabilitation of the appellant by requiring him to be supervised in the community and to undertake programs to address his impulsive behaviour and his alcohol use.  The achievement of rehabilitation in such a young offender serves not only his interests, but the interests of the broader community.

Conclusion

1. For the above reasons, on 27 October 2022, we made the following orders:

   (1)Leave to appeal granted.

   (2)Appeal allowed.

   (3)The sentence imposed by the primary judge set aside.

   (4)The appellant is resentenced to 8 months' imprisonment conditionally suspended for a period of 14 months, subject to the standard obligations in s 83 of the Sentencing Act, a program requirement under s 84A of the Sentencing Act and a supervision requirement under s 84B of the Sentencing Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JS

Associate to the Honourable Justice Hall

1 NOVEMBER 2022