Morgan v Kazandzis - [2010] WASC 377

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MORGAN -v- KAZANDZIS [2010] WASC 377

CORAM: EM HEENAN J

HEARD: 29 JULY 2010

DELIVERED : 10 DECEMBER 2010

FILE NO/S: SJA 1042 of 2010

BETWEEN: IVAN RONALD MORGAN
Appellant
AND
JONATHAN NORMAN KAZANDZIS
First Respondent
JASON JANOTKA
Second Respondent

FILE NO/S :SJA 1043 of 2010

BETWEEN :IVAN RONALD MORGAN
Appellant
AND
CARL STEVEN POULTNEY
Respondent

ON APPEAL FROM:
For File No               :  SJA 1042 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :WY 371 of 2008, KR 1867 of 2008
For File No               :  SJA 1043 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :KR 1924 of 2008

Catchwords:

Criminal law - Appeals against conviction - Appeals against sentences - Aboriginal man - Two convictions for aggravated assault occasioning bodily harm - Criminal Code s 317(1) - - One conviction for aggravated common assault - Principal prosecution witness declared hostile - Verification by witness of contents of out of court statement to police - Failure of accused to give evidence - Weissensteiner inferences - Whether convictions unsafe or unsatisfactory - Whether third sentence should be cumulative

Legislation:

Criminal Code, s 313, s 317
Evidence Act 1906 (WA)
Sentencing Act 1995 (WA), s 6, s 39(2), s 88(3)

Result:

Appeals against conviction dismissed
Appeals against sentences in SJA 1042 of 2010 dismissed
Appeal against sentence in SJA 1043 of 2010 allowed to extent that sentence ordered to be partly concurrent with other sentences to the extent of 6 months and cumulative to the extent of 3 months

Category: B

Representation:

SJA 1042 of 2010

Counsel:

Appellant:     Mr S Corish
First Respondent           :     Mr A E H Putt
Second Respondent       :     Mr A E H Putt

Solicitors:

Appellant:     Aboriginal Legal Service (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)

SJA 1043 of 2010

Counsel:

Appellant: Mr S Corish
Respondent: Mr A E H Putt

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

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

Birkett v A F Little Pty Ltd [1962] NSWR 492
Blewitt v The Queen [1988] HCA 43; (1988) 80 ALR 353
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Chan v The Queen (1989) 38 A Crim R 337
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
Johnson v Hayter [2001] WASCA 118
Kilner v The Queen [1999] WASCA 189
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mourish v The State of Western Australia [2006] WASCA 257
MWJ v The Queen [2005] HCA 74 (2005) 222 ALR 436
Norton v The State of Western Australia [2010] WASCA 115
Pickett v Fuderer (Unreported, WASCA, Library 980475, 27 August 1998)
Poletti v Adams [2005] WASC 66
Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
Pollock v The State of Western Australia [2009] WASCA 121
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Baskerville [1916] 2 KB 658
R v E (1995) 89 A Crim R 325
R v Golder; R v Jones; R v Porritt (1960) 45 Cr App Rep 5
R v Kuster [2008] VSCA 261; (2008) 21 VR 407
R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547
R v Nguyen [1989] 2 Qd R 72
R v Parkinson [1990] 1 Qd R 382; (1989) 44 A Crim R 177
R v Rosemeyer [1985] VR 945
R v Siedofsky [1989] 1 Qd R 655; (1989) 34 A Crim R 268
R v Standley (1996) 90 A Crim R 67
R v Thynne [1977] VR 98
R v Towner (1991) 56 A Crim R 221
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stoker v Raitt [2009] WASC 40
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v JWRL (a child) [2010] WASCA 179
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 548

EM HEENAN J: These are two separate appeals against convictions and sentences imposed against the appellant in the Magistrates Court of Western Australia sitting at Kununurra and Wyndham (the first appeal) and at Kununurra (for the second appeal). There are three convictions and sentences involved. Extensions of time within which to apply for leave to appeal in each case were granted by separate orders made by Jenkins J on 18 May 2010. By those orders both appeals, that is SJA 1042 of 2010 and SJA 1043 of 2010, were to be heard together.

SJA 1042 of 2010

This appeal is from decisions of her Honour, Magistrate C Crawford, sitting in the Magistrates Court at Kununurra on 18 March 2010 and taking evidence on video link from Wyndham. Her Honour was hearing charges against the appellant in Kazandzis v Morgan, WYJanotka v Morgan 371 of 2008, and in , KR 1867 of 2008. The appellant was convicted and sentenced by her Honour on 20 March 2009.
Each of the two charges against the appellant was a charge of aggravated assault occasioning bodily harm. The first (WY 371/08) was brought by a police officer, Jonathan Norman Kazandzis, and alleged that Ivan Ronald Morgan, on 27 September 2008, at Oombulgurri, unlawfully assaulted Coralie Martika Alberts and thereby did her bodily harm, in circumstances of aggravation, namely, whilst in a family and domestic relationship with the victim, contrary to s 317(1) of the Criminal Code.
The second charge (KR 1867/2008) was brought by another police officer, Jason Janotka, and it is that Ivan Ronald Morgan, on 1 November 2008, at Oombulgurri unlawfully assaulted Coralie Martika Alberts and thereby did her bodily harm in circumstances of aggravation, namely, they were then in a domestic relationship, as per s 221 of the Criminal Code, contrary to s 317(1) of the Criminal Code.
Morgan was convicted of both charges. On the earlier complaint (WY 371 of 2008) he was sentenced to 8 months' immediate imprisonment. On the second charge (KR 1867 of 2008) he was sentenced to an immediate term of 15 months' imprisonment. Her Honour directed that both terms should be served concurrently and should be backdated so as to take effect from 1 November 2008. Her Honour ordered that in each case the appellant be eligible for parole.
From these convictions and sentences the appellant appeals to this court, by leave, on the following grounds:
1.The learned magistrate erred in law (in respect of both offences) by using the appellant's silence as evidence of guilt.
2.The learned magistrate erred by failing to suspend the terms of imprisonment imposed, when:
(a)the learned magistrate failed to give consideration to whether the terms ought be suspended; and
(b)a suspension of the sentence was open in all of the circumstances.

SJA 1043 of 2010

This appeal is from the conviction and sentence of her Honour, Magistrate C Crawford in the Magistrates Court of Western Australia at Kununurra on 29 September 2009. On 1 September 2009 her Honour, sitting in that court, had heard a charge (KR 1924 of 2008) against the appellant. This was laid by a police officer, Carl Steven Poultney, which alleged that on 4 October 2008, at Wyndham, Ivan Ronald Morgan unlawfully assaulted Kailah Desley‑Anne Gallagher under circumstances of aggravation, namely whilst there were children present, contrary to s 313(1)(a) of the Criminal Code.
That matter was heard, over two sitting days on 1 and 2 September 2009. The appellant was sentenced by her Honour on 29 September 2009. The trial had taken place in Wyndham and Kununurra, at the end of which her Honour reserved her decision, which was later announced with written reasons at Kununurra on 25 September 2009. The court heard further submissions on 29 September 2009, following which her Honour sentenced the appellant to an immediate term of nine months' imprisonment cumulative upon the terms of imprisonment he was then already serving and directed that he be eligible for parole.
From that conviction and sentence, by leave, the appellant appeals to this court. The grounds of appeal are:
1.The learned magistrate erred in fact by rejecting the evidence [of the] accused and the two defence witnesses, leading to an unsafe and unsatisfactory verdict.
2.The learned magistrate imposed a sentence that was manifestly excessive in all the circumstances, given:
(a)the injury to the complainant was at the lower end of the scale;
(b)the violence involved in the assault was at the lower end of the scale;
(c)the gaps in the applicant's prior convictions for assault;
(d)the sentence of imprisonment the accused was already serving; and
(e)the ranges of sentences commonly imposed for aggravated common assault.

Bail pending appeal

In SJA 1042 of 2010, by application dated 1 April 2010, the appellant applied for bail pending appeal. That application was heard by Blaxell J on 28 April 2010 when bail was granted on terms. Those were that the appellant be released to bail on his recognisance of $5,000 with a surety of $5,000. His bail was conditional upon him residing at a specified address at Oombulgurri or at another specified address at Wyndham. It was a further condition of bail that he should not contact, directly or indirectly, Kailah Desley‑Anne Gallagher.
Although there appears to have been only one formal application for bail, there is no doubt that it was treated as an application for bail pending the determination of the two appeals. The application was presented to Blaxell J and dealt with on that basis. Counsel for the respondents, then appearing on behalf of the State, did not oppose bail as sought and granted. The appellant was released on bail pursuant to that order on or about 28 April 2010 and has been on bail since. His bail on those terms was renewed after the hearing of these appeals on 29 July 2010 pending these decisions.

Appellant's background

Ivan Ronald Morgan, was born on 2 December 1966 and at all material times was living at the Oombulgurri Aboriginal Community out of Wyndham.
Over the period from March 1988 until March 2009 he had never been sentenced to a period of imprisonment. The first occasion on which he was sentenced to imprisonment was for the two convictions which are the subject of appeal SJA 1042 of 2010, which were the sentences imposed on 20 March 2009.
Before the three charges leading to these appeals he had had a series of convictions in the Wyndham Court of Petty Sessions, dating from March 1988 to December 2006, and two further convictions in the Kununurra Magistrates Court in August 2007 for a variety of offences. His record included convictions for hindering police, resisting arrest, driving with a blood alcohol level in excess of 0.08% (three convictions), trespassing, disorderly conduct (five), hindering police (three), burglary, assault occasioning bodily harm, being disorderly by fighting, unlawfully remaining on premises, and like offences.

Appeal SJA 1042 of 2010

As already noted, this appeal relates to the two convictions of the appellant on charges WY 371 of 2008 and KR 1867 of 2008 at Kununurra on 20 March 2009. Her Honour gave reasons for her decisions on those matters at a sitting of the court that day in Kununurra following the trial of the charges two days before with evidence taken by videolink from Wyndham.
Some time after the commencement of this appeal the solicitors for the appellant were informed that the recording and transcript of the evidence at the trial of these charges could not be found. Although there was a recording of her Honour's reasons for decision delivered in Kununurra on 20 March 2009, it was then believed that no other transcript or recording was available. Consequently, in preparing for these appeals and in preparing the written submissions the solicitors for the appellant sought leave to rely on the following additional ground of appeal, namely:
(3)The court is unable to decide the appeal on the evidence and material that was before the learned magistrate as the recording and transcript of the evidence is unavailable.
Fortunately, however, the missing recording and transcript of the hearing on 18 March 2009 were later discovered and the transcript was available for consideration by the parties and for use at this hearing. One consequence was that counsel for the appellant withdrew the application for leave to appeal on the earlier proposed additional ground of appeal number (3) but, instead, sought leave to rely on a different third ground of appeal, namely:
(3)There was a miscarriage of justice as a finding of guilt was unreasonable on the evidence before the learned magistrate.
The respondent did not consent to leave being granted for this new third ground of appeal but I decided to allow the application for leave to appeal on that ground and any appeal on that ground to be raised on the footing that I would consider whether or not to grant leave to rely on that additional ground as part of the ultimate decision. I have since done that and in reliance upon the principles in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473, I am satisfied that leave should be granted to raise this third ground and I will now proceed on the footing that this ground must be addressed.
In fact, there were three charges against the appellant heard in Kununurra. There were the two charges of aggravated assault occasioning bodily harm to Coralie Martika Alberts. The first was alleged to have occurred on 27 September 2008 at Oombulgurri, and the second was alleged to have occurred also at Oombulgurri but on 1 November 2008. The third charge against the appellant was that he was guilty of a breach of protective bail conditions at Oombulgurri on 1 November 2008. That third charge was dismissed at the end of the trial and need not be mentioned again.
The victim of the alleged assaults was Coralie Martika Alberts who, for some time before 27 September and again before 1 November 2008, had been living with the appellant, although it transpires that they have since separated. At the time she was pregnant to him, and was at about the sixth week of the pregnancy in September 2008 and later in November 2008. She said in evidence at the trial that they were not in a relationship but that he had been her boyfriend for about six months before the first incident and that she was pregnant to him. The implication is that the relationship had since terminated.
The chief focus of the appeals against both these convictions is upon the alleged insufficiency or unreliability of the evidence for the prosecution. The appellant did not give or adduce any evidence in his defence. On this appeal his counsel's submissions are to the effect that the evidence led for the prosecution on each charge, and in particular because of the manner in which it emerged, is such that the learned magistrate could not have been satisfied beyond reasonable doubt that either charge had been proved. Counsel submits that each conviction should be set aside as being unsafe or unsatisfactory. To appreciate these submissions, it is necessary to provide an introductory description of the circumstances of each of the alleged assaults and of the conduct of the trial for both charges which, without any objection, were heard simultaneously.
The first assault was said to have occurred at Oombulgurri on the afternoon of 27 September 2008, the day of the AFL grand final, at the appellant's home. The second assault was said to have occurred in the early hours of the morning of 1 November 2008 at the basketball courts at Oombulgurri.
On both occasions the alleged victim, Coralie Martika Alberts, fled from the scene shortly after the alleged assault, bleeding, with various injuries to the face and head, and sought assistance from the police at the multi‑functional police facility at Oombulgurri, where, on each occasion, she was met first by the officer‑in‑charge, Senior Sergeant Ripp. The multi-functional police centre there is surrounded by a high wire mesh fence surmounted by barbed wire. There is a gate with an alarm bell which, if pressed, will raise the police occupants either within the police office itself or in the adjoining residential quarters where they live. The officers at Oombulgurri are on call 24 hours a day. On each of these two occasions, Senior Sergeant Ripp was alerted by the sound of the bell and went to the compound gate to find Ms Alberts shouting and crying to be let in, asking for help, very distressed and upset, and, on the second occasion, hysterical. He took her in, called for the assistance of the second police officer, Sergeant Poultney, took Ms Alberts inside the building, attempted to calm her down, and then took photographs of her injuries. Considering her to be in need of medical attention, on the first occasion he advised her to go to the first‑aid post for treatment. This was outside the police compound but only a short distance away. She was too frightened to do this alone and the police escorted her there, where she was treated by the medical staff and her injuries noted and recorded, and she was then brought back to the police centre.
While at the police centre Sergeant Poultney interviewed Ms Alberts, took a statement from her describing the events of which she then complained, and this was then signed by her in the ordinary way.
After each of these episodes Ms Alberts remained very frightened, saying to the police that she was afraid of Ivan (the appellant) and wanted to get away from Oombulgurri. Apparently considering her fears to be well‑founded, the police, on each occasion, arranged for a light aeroplane to fly in to Oombulgurri to pick up Ms Alberts and take her off to another centre for some time. They escorted her to the landing strip and waited with her until the aeroplane arrived and departed with her on board. Senior Sergeant Ripp described Ms Alberts during the periods when they were waiting for the aeroplane as being very frightened and apprehensive and showing alarm whenever the telephone rang or there was movement in the vicinity.
At the trial of the appellant on both these charges documentary evidence from the medical centre was produced by consent, recording injuries noticed by the medical staff when Ms Alberts was brought in for attention shortly after each of the alleged assaults. Also tendered in evidence were three photographs taken by Senior Sergeant Ripp at the police centre shortly after her arrival on the afternoon of 27 September 2008, and another three such photographs, again taken by Senior Sergeant Ripp shortly after her arrival at the police multi‑purpose centre in the early hours of the morning of 1 November 2008. These showed visible injuries, lacerations, bruises and some bleeding. There were six such photographs which became exhibits 1 to 3 (relating to the first charge) and 4 to 6 (relating to the second charge). In addition, there were two further photographs taken at the medical clinic after the second alleged assault showing injury to the complainant's upper lip and to her knee. These photographs showed the injuries exposed by the clinical assistant, nurse Bond, who was attending to the complainant.
Senior Sergeant Ripp gave evidence confirming the sequences of events as I have outlined them, including his description of the injured complainant, her agitated state, her fear of remaining at the community, the arrangements to have her injuries treated at the first‑aid clinic, and the later arrangements which he made to call in a plane and have her evacuated from the community. He also explained how, following inquiries, he arrested the appellant, who declined to offer any explanation or make any statement. He remained in custody from the date of his arrest on 2 November 2008 until he was sentenced by her Honour on 20 March 2009, and that period of approximately four and a half months was alluded to by her Honour when setting the sentences.

The other evidence for the prosecution on each charge was from Coralie Martika Alberts herself. However, when she was asked in the course of evidence‑in‑chief about these incidents, she claimed that she could not remember them. On further questioning, she said she was drunk at the time. Further attempts at questioning her produced no material responses. Then, in relation to the first alleged assault, she was shown the statement which she had made at the police station as recorded by Sergeant Poultney and signed by her. Again she declined to give informative answers relating to the incident. An application was then made on behalf of the prosecution for her to be declared a hostile witness, so as to enable the prosecutor to cross‑examine her. The application for that declaration of hostility under s 20 of the Evidence Act1906 (WA) was not opposed by the appellant's counsel and the declaration was made.
Counsel for the prosecution then asked a series of questions of the witness seeking confirmation, proposition by proposition, that she had actually told the police the matters recorded in each of the sentences in the statement and to each of these she agreed that she had. These included statements that it was the appellant who had assaulted her, and descriptions of the assault, including slapping in the face, kicking in the head and stomping on her head while she was on the ground, lying on top of her with his hands around her head and face and blocking her breathing. The statement included words by the complainant that she was afraid of the appellant and had asked the police to arrange for her to be removed from Oombulgurri.
After the complainant had confirmed to the prosecutor that she had, in fact, made each of these statements to the police at the police compound on 27 September 2008, she was asked by the prosecutor whether the statements were, in fact, true and she said that they were.
A similar process followed in relation to the evidence of the complainant relating to the second alleged assault on 1 November 2008. Her evidence in relation to this alleged incident started afresh, on the basis that the previous declaration of hostility only applied to the first incident. Accordingly, she was examined in‑chief in the usual way by the prosecutor but, again, her answers were unresponsive, she claimed she could not remember, and said that she had been drunk at the time. A second application was made for her to be declared hostile and, again, that was not opposed. The learned magistrate allowed the complainant to be cross‑examined by counsel for the prosecution, who then took her, by a similar process, step by step through the second statement which had been made to the police at the Oombulgurri police centre on 1 November 2008. Once more Ms Alberts confirmed, sentence by sentence, that she had said things recorded in the statement to the police on that occasion and, again, after it had been confirmed that all of the matters in the statement had been said to the police and recorded by them at the station, she was asked whether the statements were true and again she said that they were.
Ms Alberts was then cross‑examined by counsel for the appellant. The cross‑examination was very short and I reproduce it here in full:
PERRY, MS: Hi, Coralie. I'm just going to ask you some questions about grand final day?---Mm.
You told us before you can't remember if anything happened to you on grand final day. Is that true?---Just that I can't remember.
Is it true that you were very drunk on that day?---Yes - between - - -
Sorry, what did you say?---I said between us or between.
In between drunk?---Yeah.
Right. Coralie, you've told the police that you were at Ivan's house and that Ivan hit you across the face. That never happened, did it?---What's that?
Coralie, you were in between drunk on grand final day. Is that right?---Yes.
You can't remember anything that happened that day?---No.
I'm just going to ask you about the basketball court in November when you were at the basketball courts. Is it true that you can't remember anything that happened at the basketball courts?---Yes.
You can't remember?---No.
No, you can't remember. I have no further questions, your Honour.
The only other witness was a Mr F W Grant, who was the chairperson of the Oombulgurri Aboriginal Community, then aged 43 years. He knew all the members in the community and had know the appellant all his life. He had been with the appellant and others drinking at the Oombulgurri basketball courts during the night of 31 October/1 November 2008 and was there at about 2.00 am when Coralie Alberts arrived. According to him, she arrived in a utility with his son, jumped out, ran over to the group and started swearing at the appellant, and then ran over to another young woman, Erica, and started punching her. According to Mr Grant, Ms Alberts and Erica started fighting and he and the appellant ran over to separate them. Grant took a hold of Erica and led her away, and the appellant took hold of Ms Alberts and pulled her away. He described what then followed:
What's the next thing you remember happening or seeing?---Well, I was - they were shouting. I didn't know what - anyway I think I was more concentrating on Erica because she was shouting at the same time to Coralie. So I was just thinking her way than - at the same time Ivan was stopping Coralie so - when I turned back Ivan was stopping Coralie. Then Dean and that came over, trying to stop Coralie. That's when, like I said, I don't know what happened. Ivan was there. She was stopping her hand and - stopping it and she got up and ran off.
All right?---She ran away.
You said you saw Ivan stopping Coralie. Can you describe what you saw?---Well, Ivan was over there holding her and stopping her from moving. That's when he - quick glimpse and then I looked away and then the last thing I knew is she was - and the last time I looked she ran off. She ran off down the road.
How long was he holding her for?---I would say a few - say about five, five to six seconds.
Five to six seconds?---Yeah, very quick.
Were you able to see his arms at all?---Like I said, his arms was there like moving, trying to - - -
Moving?---Yeah.
Can you describe that please, Mr Grant?---Like I just - holding her down, moving, movement, like moving her hand at the same time and I looked away. All I just seen was her hand, only her hand, moving at the same time, moving.
…
Yes?---It was more like holding her to stop her from - you know, she was stopping him - her - and I was stopping Erica. So to my knowledge - like I said, I don't know what was -all I'm saying is that she - he was more like he was holding her, stopping her, trying to - moving, you know, moving, trying to hold, stop her from moving, settle her down, but - - -
But you said 'holding her', but you have said you saw his arms moving?
---Yeah. Like, they were - he had her - you know, like, both were thrusting with both hands, movement, you know? Like that.
Again, Mr Grant was cross‑examined but only very briefly, the principal point emerging from the following question and answer:
You never saw Ivan hit Coralie?---No. Like I said in my statement, no, I didn't. I didn't see any (indistinct).
At the trial, counsel for the appellant submitted that although there was plainly evidence that Ms Alberts had been injured, first on 27 September, and again on 1 November 2008, that she was distressed, dishevelled and upset, and sought aid at the police station, had been given first‑aid treatment and was, on each occasion, later evacuated from the community, there was no reliable evidence to establish that she had been assaulted by the appellant. It was submitted that the only evidence associating the appellant with the alleged assault was that contained in the two statements given by Ms Alberts to the police which, although she confirmed those after being declared hostile, had been effectively abandoned or undermined by her statements in re‑examination that she had no recollection of the material events on either of the days in question.

Magistrate's reasons for decision

As noted, her Honour gave reasons for decision on the morning of 20 March 2009 at Kununurra, and these were fully transcribed. The reasons leading to the conviction of the appellant on the two charges cover 10 pages of transcript but I will select only those passages which appear critical to the determination of the decision or which have been suggested in the course of these appeals to contain actual or implicit error, or to give rise to the submissions that the convictions are unsafe or unsatisfactory.
Her Honour began with an identification of the two charges, and described the role of Senior Sergeant Ripp in relation to both cases. She described the taking of the photographs of Ms Alberts' injuries following both episodes, her treatment at the medical centre at Oombulgurri and her evacuation by aeroplane from the Oombulgurri Community. She identified in some detail the nature of the individual injuries recorded at the medical centre and shown on the photographs. Then her Honour turned to the evidence of the alleged victim and said:
Coralie's own evidence was problematic. First of all, she couldn't remember what happened on grand final day. She would not volunteer anything. She said she was drinking and she was drunk. She didn't know if she made a report to the police. She didn't recall making a statement to police. She didn't recall being in a relationship with anyone at the time.
Without objection, she was declared a hostile witness. A series of propositions were then put to her which sought to have her confirm that she had made statements in relation to an incident on the relevant date as set out in a document with her name, signature and the date of the alleged assault on it, had indeed been made to the police by her. She agreed she had made each of the statements which were put to her from a written document which she accepted had her name on it and she had signed on the relevant date.
When asked to confirm that the statements were true, she said she didn't remember it happening. When asked by she had told the police these things, she said she remembered going to the police on that night. She confirmed the police had arranged for her to depart the community that night. She said, as I have referred to earlier, she wanted to get on the plane, 'To get away from Ivan.' When asked why, the first answer was, 'I don't know.' When it was put to her that the statement to the police was true she said yes and, as I have said earlier, 'Ivan did things to me.'
The court must exercise considerable caution with the evidence of the complainant. Apart from other considerations the phenomenon of gratuitous concurrence is well known with Aboriginal witnesses. What was clear during the course of the complainant's evidence was that she showed extreme reluctance to say anything substantive about what Ivan had done. Her evidence did not merely consist of the spoken word. There were [many] non‑verbal cues. The complainant was heavily pregnant. She was constantly moving her body, squirming in the chair, sitting forward and back, placing her hand or both hands under [her] heavily‑pregnant belly, putting her hands on and over her face to cover it, sliding down in the chair.
…
Her physical demeanour changed when she was asked to answer open‑ended questions, rather than the series of propositions containing statements she had [made] to police. When she was asked open‑ended questions regarding the circumstances of the assault or state whether the statements whether the statements she had made to police were true, her physical demeanour was different, demonstrating more anxiety and tension, and the inference I drew from the entirety of her evidence, that is both verbal and non-verbal, is as I have said extreme fear of the accused.
Then, after dealing with other matters and turning to the evidence relating to the second alleged assault, her Honour said:
In relation to the second alleged assault, the course of the complainant's evidence was similar to that regarding the first assault. First of all, when asked about whether something occurred at the basketball court on 1 November she said she couldn't remember anything, she couldn't remember going to the police and telling them something. She agreed that a statement she was shown had her name and signature on it. It was dated 3 November 2008, that is two days after the alleged assault.
Once declared a hostile witness, propositions were put to her about statements she had made to police which were contained in the statement that she had signed. She agreed with every proposition, that is that she had made that statement to police. I will come to the content of her evidence itself shortly. She agreed that it was true that Ripp had taken her to the clinic and helped her. At the end of the series of propositions when she was asked to confirm, having made statements to the police, with which she agreed, Coralie was asked whether she remembered making the statement to police. She said she didn't recall. She said she didn't remember something like this happening.
Shortly afterwards, she agreed she did remember. When the inconsistency between the written statement to police and the statement in court was put to her, she paused and made the sound I have described earlier, paused, then said she was drunk.
Her Honour then went on to describe the evidence of Mr F W Grant relating to the incidents at the basketball courts, and then observed:
[F] Grant was careful not to say anything adverse to the accused. His final answer, 'I didn't see anything' revealed an unwillingness to tell the truth or the whole truth. He might properly be described as an unfavourable witness. What he does say of Ivan Morgan's conduct was, 'He held Coralie for five to six seconds, his arms were moving. He was holding her down, his arms were moving.'
Then, her Honour turned to the absence of any evidence for or on behalf of the appellant and said:
The accused has not offered evidence of any 'hypothesis or explanation' for the evidence in relation to the first [or] second alleged assault, which is 'consistent with innocence' in the words of his Honour Mason CJ and Deane and Dawson JJ in Weissensteiner v R (1993) 178 CLR 217 at 228 to 229.
Her Honour then went on to cite passages from the reasons for decision in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 by Gaudron and McHugh JJ at 244 ‑ 245 and per Brennan and Toohey JJ at 235, and then went on to cite a passage from the judgment of Ipp J in Pickett v Fuderer (Unreported, WASCA, Library 980475, 27 August 1998) before concluding:
There his Honour was quoting Gaudron and McHugh in Weissensteiner, and that's at page 6 of the unreported decision of Pickett v Fuderer. In this case, there is compelling evidence that the complainant Coralie Alberts was assaulted by the accused. There's no evidence of denial by the accused. In court [he] has not challenged the evidence of the complainant or Senior Sergeant Ripp. The medical reports were tendered without objection. The court is satisfied that in relation to each of the alleged assaults the prosecution has proved all elements of the offence beyond reasonable doubt.
The court does not consider that the evidence permits any reasonable doubt. If, however, I'm wrong about that, especially in relation to the alleged assault at the basketball court on 1 November 2008, the failure by the accused to, in the words of the court in Weissensteiner 'deny, answer or explain' the state of the complainant when she was seen by Ripp at or about 2 am strengthens the inference that he had assaulted her, causing the injuries with which she presented to Ripp and were later documented by the Kununurra Hospital.
I'm satisfied that the complainant and the accused were in a domestic relationship as defined by section 221 of the Criminal Code. Further, I'm satisfied in relation to each of the alleged assaults that bodily harm was done to Coralie Alberts. Finally, for the reasons given, I'm satisfied that each element of each of the offences of assault was proved beyond reasonable doubt.
At the hearing of this appeal counsel for the appellant submitted that the evidence of Ms Alberts, elicited after she had been declared hostile in the manner in which it was, but later to some degree retracted or undermined by her answers in re‑examination, could not support a finding beyond reasonable doubt that it was the appellant who had assaulted her. Further, the appellant submits that there was no onus upon him to give evidence or disprove any part of the case against him and that the use made by her Honour of the principles in Weissensteiner v The Queen was erroneous and amounted to an improper reversal of the burden of proof and the onus of proof. Consequently, it is necessary to turn to those issues.
Counsel for the appellant has submitted that, after Ms Alberts was declared hostile, the mechanism by which the learned magistrate formed the view that her prior written statements, inconsistent with her earlier oral evidence, should be admitted and amounted to proof of the statements contained in them, was unclear. Counsel submitted that insufficient attention had been given to the warning in Blewitt v The Queen [1988] HCA 43; (1988) 80 ALR 353 [8] where Mason CJ, Wilson, Brennan, Dawson and Toohey JJ said:
The crux of the applicant's submission is that the prosecutor knew that A D Blewitt was a hostile witness, at least from the time he gave evidence on the voir dire, and that the only reason or purpose for calling him was to place the prejudicial prior inconsistent statement before the jury. It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice: R v Thompson [1964] QWN 25; R v Hall [1986] 1 Qd R 462, 465 ‑ 466.
However, there was no basis in this case for concluding that the prosecution called Ms Alberts to give evidence, knowing that she would be hostile or that the only purpose for doing so was to introduce her prior 'inconsistent' written statement with a view to prejudicing the jury or the tribunal of fact. There was no voir dire and there was no objection to the witness being declared hostile on either of the two occasions when such declarations were made.
The evidence of the complainant relied upon is not her out of court inadmissible prior statement but, rather, her acknowledgement in court under oath of the truth of that statement when confronted with its details. It is of the first importance to distinguish between what the witness said out of court in a prior written statement. That evidence, if inconsistent with what has been said by the witness in court under oath, is not admissible to prove any of the facts in issue at the trial. The only use which can be made of such out of court evidence, subject to the exception about to be mentioned, is to reflect upon the credit of the witness in relation to evidence which he or she has given in court. It may reveal the witness to be a person of low credit, in which case little or no regard might be paid to what the witness said in the courtroom. Subject to the exception, already alluded to, the out of court evidence is not proof of any of the facts which it asserts or purports to assert.
Now I come to the exception. If in the course of giving evidence on oath in the courtroom the witness, after being declared hostile, confirms the truth of the evidence in the out of court statement, then that confirmation of its truth is evidence given at the trial and may be used for the purpose of using or attempting to prove that fact or those facts contained in the out of court statement which have been expressly so confirmed. Necessarily, such confirmation of the out of court statement will have come from a witness who has previously declined to give evidence along the lines contained in the out of court statement or who has given evidence inconsistent with that, so that the process leading to the confirmation of the out of court statement, if that is what has occurred, has itself necessarily reflected against the credit of the witness. In some jurisdictions, for example, under the former s 101(1)(a) of the Evidence Act 1977 (Qld) such out of court statements were themselves admissible as exceptions to the hearsay rule ‑ as discussed in Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267. In such cases, it has been said that a conviction based substantially upon such an out of court statement might well be regarded as unsafe ‑ R v Nguyen [1989] 2 Qd R 72 and R v Parkinson [1990] 1 Qd R 382, 384; (1989) 44 A Crim R 177 (Macrossan CJ), but there are instances where the existence of additional evidence will render a conviction based partly on the out of court statement safe ‑ R v Siedofsky [1989] 1 Qd R 655; (1989) 34 A Crim R 268 (see the helpful discussion in Ligertwood & Edmond, 'Australian Evidence' (5th ed, 2010) Butterworths [7.119] ‑ [7.120]).

When a witness has been declared a hostile witness and admits that he or she has made an inconsistent statement, the contents of the statement are not proof of the facts stated, at least if the witness is not a party and they are not admissions: R v Golder; R v Jones; R v Porritt (1960) 45 Cr App Rep 5, 11; R v Thynne [1977] VR 98, 100. However, once the witness, having had the facts in the statement drawn to her attention, says in court that they are true, that confirmation renders them evidence: Birkett v A F Little Pty Ltd [1962] NSWR 492; R v Thynne (100 ‑ 101); and Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, 466 (McHugh, Gummow & Hayne JJ).
There was no attempt in the present case to rely on the prior written statement of Ms Alberts to the police as evidence implicating the appellant in the assaults. Rather, the case was conducted and decided by her Honour on the basis that it was the confirmation of the contents of those statements in the course of her cross‑examination, after being declared hostile, which made them admissible and constituted evidence at the trial. With respect, I consider this to be the proper and orthodox approach, but the question remains whether in the end, having regard to the extent to which the credit of the witness may have been impaired in the process and, in this particular case, also because of the witness's statements in re‑examination that she had no recollection of events on those two days, that is evidence which can be relied upon to support the adverse findings and, even if it is, whether those findings are, in all the circumstances, unsafe or unsatisfactory.
Counsel for the appellant also submits that the unreliability and tenuous credit of the appellant's evidence confirming her out of court statements is further enhanced by the lack of corroboration of the evidence identifying the appellant as the alleged assailant on either occasion. Counsel submits that for evidence to amount to corroboration it must come from a source independent of the witness to be corroborated, be capable of confirming in some material particular that the offence was committed and that it was the accused who committed it: R v Baskerville [1916] 2 KB 658; R v Rosemeyer [1985] VR 945; and R v Kuster [2008] VSCA 261; (2008) 21 VR 407 and, further, the evidence must not have been given by another unreliable witness: Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
There is no rule of law or practice which requires that the evidence of a complainant in charges such as these must or should be corroborated, nor is there any obligation upon the presiding judicial officer to give to a jury, or to himself for herself, a corroboration warning about such evidence. However, this does not negate the need for a direction, in the case of a jury trial, or a realisation, in the case of a trial by a judge or magistrate alone, that it may be appropriate to recognise that the evidence of a single witness asserting the commission of a crime should be scrutinised with great care: R v Vawdrey (1998) 100 A Crim R 488, 496 ‑ 497. It is quite apparent that the learned magistrate in this case appreciated the significance of the evidence of Ms Alberts and the need to scrutinise it closely and to evaluate it in the light of all the other evidence. There is, therefore, no basis to conclude that the critical potential significance of that evidence was not recognised or analysed with that degree of reserve in mind.
Her Honour was alive to the significance of the demeanour of the complainant as a witness as well as the content of her oral testimony. Her Honour had no hesitation in concluding that the witness was very afraid and that it was also clear from the tenor of her evidence before she was declared hostile that she was most reluctant to say anything which might incriminate the appellant. That demeanour and inclination were themselves significant factors in the manner in which her Honour evaluated the testimony of the complainant. In the first place, her display of fear was entirely consistent with the direct evidence at the trial from Senior Sergeant Ripp, who described the complainant as being very frightened and agitated when she had come to the police complex on both occasions, frightened about going to the first‑aid post, and very frightened about remaining at the Oombulgurri Community, so much so that on each occasion he arranged for her to be flown out by an aeroplane specially called in for the purpose. She complained to him at the time that she was frightened of Ivan and evidence of that fear was consistent with the written statement which she had made and later confirmed in the course of her evidence after being declared hostile.
There was no suggestion in the course of her cross‑examination that her evidence in the police statements, confirmed in the court, was unreliable because of some general lack of credit or because of animosity or prejudice towards the appellant, or for any other reason. It was not suggested to her that those statements were untrue. Rather, the suggestion, accepted in re‑examination, was that she could not remember the events of those two occasions.
This raises the very question of why the complainant was, apparently, not disposed to give a full account of the events under examination when asked to do so during her evidence‑in‑chief. The answer to that question was regarded by the learned magistrate as being her fear of the appellant. That was a conclusion consistent with all the known circumstances and the evidence of Senior Sergeant Ripp. In the absence of any other reasonable explanation or hypothesis about why the complainant was not prepared to give a full account of events in her evidence‑in‑chief, a finding that her actions were prompted by fear of the appellant is a finding which the learned magistrate was entitled to rely upon when evaluating the reliability of the witness's sworn evidence that the facts which she had given to the police and which are recorded in her written statement were true.
What then of the final answers by the complainant in re‑examination that she had no memory of events on the occasions in question? Those were answers which were inconsistent with what the witness had said a few moments before about making the statements to the police officer and confirming that the contents of those statements were true. Is that final inconsistency of such a character as to deprive all of the testimony of the witness of credit? A decision about such a matter is plainly a decision about the credit of the witness on matters of fact. Her Honour appreciated that the evidence of the witness was 'problematic' but nevertheless, after a due recognition of the variations in her evidence, and after a search for an explanation for this inconsistency, her Honour decided that the account of events contained in the statements to the police and confirmed in the oral examination was true. There is no doubt that her Honour was entitled to reach that conclusion on the evidence before her. The question which remains is whether or not it is a finding upon which it is safe or satisfactory to base these convictions.
It is, of course, in theory, possible that Ms Alberts may have suffered the injuries which were depicted in the photographs and recorded at the first‑aid centre and later at Kununurra Hospital by some means other than an assault by the appellant. She may have fallen or have been involved in an accident. This is unlikely because of the nature of the injuries and their location, and it was never suggested that they may have been suffered by such a cause. She may have been in a fight with some other person or been assaulted by somebody else, but again there was no suggestion that she had been in an altercation with any other person on 27 September 2008 and it was not suggested that her initial fight with the other young woman at the basketball court on 1 November 2008 accounted for, or could have accounted for, the injuries later confirmed. The only person accused of assaulting her on either occasion was the appellant. This does not, of course, prove that it was the appellant who assaulted her but where the only evidence there is about the identity of the assailant is evidence that it was the appellant, it means that such evidence may be more readily accepted than if there were any reasonable basis to believe or suspect that the injuries may have been caused by somebody else or in some other way.
Her Honour also regarded the evidence of Mr F W Grant about the episode at the basketball court, at least in part, as being unfavourable to the prosecution. It will be recalled that it was his evidence that the complainant had arrived at the basketball court, had immediately rushed towards the appellant and begun swearing at him, and had then dashed towards the other young woman, Erica, and began fighting with her and that the appellant, Grant and others stepped in to separate the fighting women and had to hold them for some time to subdue them. It was Grant's evidence that he did not see the appellant strike Ms Alberts, although he did see him holding her and his arms moving. His brief cross‑examination by counsel for the appellant did not in any way canvass the sequence of events from the arrival of Ms Alberts at the basketball court and was confined to eliciting information about the extent of visibility and the witness's confirmation that he did not see the appellant hit Coralie.
Again, the assessment of the demeanour and credit of the witness Grant was a matter entirely for her Honour, but it is apparent that her Honour accepted the evidence that the appellant had hold of Ms Alberts for a brief time and that his arms seemed to be moving towards her. Her Honour has obviously treated that evidence as being consistent with the evidence of Ms Alberts that she was being struck by the appellant while held down at the basketball court. Such an evaluation of the evidence needs to recognise that when Ms Alberts was giving evidence and being cross‑examined it was never put to her that on arrival at the basketball court she ran towards the appellant and swore at him, or that she then ran towards the other young woman, Erica, and began to strike her, or became engaged in a fight with her. There was nothing to that effect in the statement which had been made to the police on 2 November 2008 and which was confirmed by Ms Alberts after she had been declared hostile.
It was also the case that Mr Evans, on his evidence, had been drinking with the appellant earlier that evening and had known him for most of his life. The basis for the inference that he was a witness unhelpful to the prosecution was there to be drawn and it was a decision for her Honour as to whether or not it should be drawn.
This was a case where the decision of the court turned very greatly upon the credit of Ms Alberts and where, for reasons which the magistrate ultimately found, inconsistencies in her evidence were explained to a very great degree by her fear of the appellant. Her Honour expressly recognised that the onus of proof rested upon the prosecution and that proof of all elements of the alleged offences, including proof that it was the appellant who committed the assaults, needed to be established beyond reasonable doubt. Her Honour was satisfied that the evidence did amount to proof beyond reasonable doubt and, accordingly, convicted the appellant of both charges.
However, counsel for the appellant submits that her Honour's expressions of being satisfied beyond reasonable doubt upon the evidence must be regarded as provisional or tentative because her Honour then went on to address the significance of the appellant not himself giving evidence and characterised this as a matter which strengthened the inferences, otherwise conveyed by the evidence for the prosecution, that it was the appellant who had committed the assaults, relying, in doing so, upon passages in Weissensteiner v The Queen and Pickett v Fuderer (Ipp J). The submission for the appellant is that the doctrine in Weissensteiner may, where it applies, permits an adverse inference against an accused to be drawn more readily if he or she fails to give evidence, where the prosecution case is one based on circumstantial evidence from which the court is invited to infer the guilt of the accused from other facts proved and there is a basis for concluding that there might be additional facts which would explain or contradict the prosecution evidence peculiarly within the knowledge of the accused but the accused fails to give evidence of such other facts or declines to offer any such explanation: Azzopardi v The Queen (2001) 205 CLR 50; RPS v The Queen (2000) 199 CLR 620; and Weissensteiner (217). However, the submission proceeds to assert that there is a fundamental difference between silence by an accused strengthening a prosecution case (in the present case, based on the evidence of the complainant) and permitting inferences more readily to be drawn. The submission is that the silence of the accused cannot supplement a deficiency in the prosecution case and that simple failure to contradict an element in the prosecution case does not fill in gaps in the prosecution case because a plea of not guilty puts all matters in issue: MWJ v The Queen [2005] HCA 74 (2005) 222 ALR 436 and R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547.
I come now to the question of whether or not, the findings of fact made by the learned magistrate, having been open to her Honour, as I am satisfied they were, it is nevertheless unsafe to convict the appellant on that evidence. The submission for the appellant is that it was unsafe to convict on the evidence of Ms Alberts alone: Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. However, this is not a case in which there was any significant delay between the alleged commission of the offence, the charging of the alleged offender or the trial so as to give rise specifically to the type of warning commonly known as the Longman direction. Nor was there any reason to consider that Ms Alberts fell into the category of suspect witnesses ‑ see White v The Queen [2006] WASCA 62 [34] (Wheeler JA).
It has been stressed in Norton v The State of Western Australia [2010] WASCA 115 [27] (Pullin JA) that in rare and exceptional cases comment may be made by a trial judge about the failure of an accused to disclose additional facts which could be known only to the accused in answer to a prosecution case. However, great care needs to be exercised in the application of this principle because when an accused person elects to remain silent at a trial his or her silence cannot amount to an implied admission. As observed by Mason CJ, Deane and Dawson JJ in Weissensteiner (229), it is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the tribunal of fact is required to consider that the failure may be taken into account, but even then it may only be taken into account for the purpose of evaluating that evidence.
Counsel for the respondents has submitted that while the appellant's election not to give evidence at his trial could not fill in gaps in the prosecution, the learned magistrate treated the absence of evidence by the accused as allowing her to feel more confident in relying upon the prosecution evidence. The submission is that this comment was undesirable, but in the context of the reasons given, when read as a whole, does not give rise to any error or any miscarriage of justice. I accept that submission.
In this case, by the end of the trial, the crucial decision which needed to be made by the learned magistrate was whether or not to accept as proof beyond reasonable doubt the evidence of Ms Alberts, led from her in cross‑examination after she had been declared hostile, that what she had said in her two statements to the police at Oombulgurri was in fact the truth and that it had been the appellant who had assaulted her. That was a difficult decision in view of the fragility of the witness Ms Alberts, her statements that she had been drunk and could not remember, and her continuing unwillingness to give a detailed account of what happened on the occasions leading to the alleged assaults. All the other evidence established clearly enough that she had been injured, was very frightened and in need of help and protection, and was afraid of the appellant. No other reasonable explanation or theory as to how she may have come by her injuries was available. Her evidence, obviously weakened by her inconsistency, identified the appellant as the assailant on each occasion. Was that sufficient to prove the case? There was no evidence denying the accusation and in the absence of such evidence her Honour concluded that it could be accepted.
There can be no doubt that her Honour was possessed of considerable advantage in hearing and seeing the witnesses, notably Ms Alberts, Senior Sergeant Ripp and Mr Grant, give evidence and there can be no scope for any suggestion that her Honour misused her advantages in reaching her conclusion or failed to take into account other evidence or factors relevant to her decision. I do not consider that any error has been established in the approach taken by the learned magistrate nor in the findings which she has made. Nor do I consider that it is unsafe or unsatisfactory to base the convictions upon the findings which were made because of any circumstances or the manner in which the evidence emerged or because the decision to convict depended upon the acceptance of the evidence of Ms Alberts. The acceptance of her evidence did not occur without a full appreciation of the inconsistencies, nor without a search for explanations for her reluctance to give a full account of events. The acceptance of her evidence took into account other clearly established facts such as the nature and extent of her injuries and the existence of her prior relationship with the appellant. I am satisfied that her Honour had regard to all relevant features of the case and that she was justified in reaching the conclusions which she did. Accordingly, I would dismiss the appeals against these two convictions.

Sentences imposed for the two convictions for aggravated assault occasioning bodily harm

As earlier mentioned, the appellant was sentenced to 8 months' imprisonment for the assault committed on 27 September 2008 and 15 months' imprisonment for the assault committed on 1 November 2008, to be served concurrently, and in each instance was made eligible for parole.
The grounds of appeal submit that the learned magistrate was in error in failing to consider a suspended sentence and in failing to order a suspended sentence for each offence.
The summary conviction penalty for each of these offences is 3 years' imprisonment - Criminal Code s 317(1)(b)(a) and, as explained by Miller J in Johnson v Hayter [2001] WASCA 118 [10], that is a jurisdictional limit rather than a maximum penalty. It follows that a magistrate at a summary trial may sentence a person convicted for this offence to a term which falls below the cap set by the statutory conviction penalty notwithstanding that the starting point in calculating that term was for a period longer than the jurisdictional maximum: Poletti v Adams [2005] WASC 66 [24] (Blaxell J).
The learned magistrate concluded that an immediate sentence of imprisonment was the only appropriate penalty having regard to the nature and seriousness of the offences. Her Honour characterised these as vicious assaults upon the appellant's partner. By describing this as conduct for which no other penalty was available, her Honour, necessarily, concluded that it was not appropriate to use any of the options listed before the option of immediate imprisonment in s 39(2) of the Sentencing Act1995 (WA). The victim of the assaults was particularly vulnerable, being in a prior relationship with the appellant and being pregnant at the time of both assaults. There was no plea of guilty or favourable antecedents which might have acted as mitigating factors.

The greatly differing circumstances in which the offence of assault occasioning bodily harm may be committed account for the absence of any clear pattern or tariff in sentences for this offence. A group of serious offences was reviewed in Kilner v The Queen [1999] WASCA 189 [22] (Ipp J) demonstrating the range of penalties from 8 months to 2 years' imprisonment prior to the transitional provisions, but those cases were generally ones involving the use of weapons of some kind ‑ see The State of Western Australia v Camilleri [2008] WASCA 217 [16] (Wheeler JA). A further review of cases was undertaken by McLure JA in Mourish v The State of Western Australia [2006] WASCA 257 [12] but I do not consider that any clear general pattern can be said to emerge. Sentencing for this offence is very much a matter for judicial discretion having regard to the circumstances of a particular case and any review of a sentencing exercise by a judge or magistrate needs to take into account the full extent of these discretionary features and the principles in House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505, and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
There are certainly cases in which suspended terms of imprisonment have been imposed for the offence of assault occasioning bodily harm, particularly in the case of a young offender or a first offender: Stoker v Raitt [2009] WASC 40 [33] (Jenkins J).
Having concluded that the learned magistrate had rejected the option of suspending the terms of imprisonment which she considered were warranted by these offences, the issue becomes whether or not there was any error demonstrated by her Honour in failing to suspend one or both of those sentences. Clearly, her Honour was of the view that the seriousness of each offence warranted a sentence of immediate imprisonment, but it is equally apparent that her Honour was also of the view that the protection of the community required it. These were two serious offences by the appellant, who had twice before in recent years been convicted of offences of aggravated assault occasioning bodily harm, for which non‑custodial sentences had been imposed. His violent conduct towards the victim on 27 September 2008 had been repeated less than five weeks later and she was in obvious fear of him. The fear must have been recognised as being well justified because of the actions taken by the police in evacuating her by air from Oombulgurri immediately after each episode. She was much younger than the appellant, had been in a relationship with him and was pregnant. Violent treatment of women in this fashion cannot be tolerated anywhere in the State, but it is of particular importance that in isolated communities such as Oombulgurri that the punishment of an offender who commits such offences in a short space of time should be such as to demonstrate to all members of the community that that conduct is unlawful and that effective punishment will be imposed in order to deter the general community from the use of violence. Specific deterrence of the individual offender was, in this case, also a necessary and essential ingredient of the sentence. For these reasons, I do not consider that any error has been demonstrated by the learned magistrate in deciding upon immediate sentences of imprisonment rather than suspending one or both of them.
At the time of these convictions the appellant was aged 41 years and he had a prior record for offences dating back to 1988 which included offences for resisting arrest, hindering police, assaulting public officer, disorderly conduct, assault occasioning bodily harm (1996), disorderly fighting (two), assault occasioning bodily harm (2003) and other offences. His age and record did not provide reasons for leniency. It is to be noted, however, that he had not previously been sentenced to any term of imprisonment either suspended or immediate. He had, as already mentioned, been in custody on remand for about 4 1/2 months immediately before these convictions.
The second offence was, in a sense, more serious in that it was a repetition of the same unlawful conduct against the same victim very shortly afterwards and revealing the lack of any compassion or appreciation of the wrongfulness of the conduct. For this reason, as well as being an unrelated offence, it warranted a longer term of imprisonment. The result, therefore, is that I would dismiss the appeals against sentence.

SJA 1043 of 2010

This is from the conviction and sentence of 9 months' imprisonment with eligibility for parole imposed upon the appellant at Kununurra on 29 September 2009 for the offence of aggravated common assault against a young 15‑year‑old girl at Wyndham in the early hours of 4 October 2008. That sentence took effect from 29 September 2009 and was made cumulative upon the sentences then being served under the convictions on 20 March 2009.
That offence as found had been committed on 4 October 2008. That is, after the first assault upon Ms Alberts at Oombulgurri on 27 September 2008 but before the later assault upon Ms Alberts on 1 November 2008 at Oombulgurri. Having regard to all the circumstances, it was another serious example of the readiness of the appellant to resort to violence against a young woman, much younger than himself, and entirely vulnerable. A significant feature of the case in her Honour's view was that the appellant had driven with a number of adults and other members of his family to the victim's house in the early hours of the morning with the purpose of remonstrating with her and the other girls over a grievance about the manner in which all the girls had treated his son earlier in the evening. The entire episode was most inappropriate and involved a significant breach of the peace.

Magistrate's reasons for decision - SJA 1043 of 2010

The details of this prosecution emerge sufficiently from passages in the reasons for decision of the learned magistrate as follows:
1.Mr Morgan ('the Accused') is charged with unlawful assault of Kailah Desley‑Anne Gallagher under circumstances of aggravated, that is that there were children present at the time.' He has pleaded not guilty.
2.In the early hours of the morning of 4 October 2008 the Accused, accompanied his brother, Darren, and sister in law, Shirley Anne Morgan, together with their children and other relatives, to a house at Warriyu Reserve in Wyndham where four young girls, the complainant included, were staying that night with a female adult, Ms Kylie Gore. Following the arrival of the Morgans there was a verbal exchange between members of the Morgan family and the girls during the course of which the complainant fell over backwards and struck her head on the ground.
3.The issue in this case is whether [she] stepped backwards and fell over a dog or as the prosecution alleges, force was applied by the accused using his shoulder to connect with the complainant's chest and causing her to fall backwards hitting her head on the ground.
…
5.Essentially there were 2 versions of what happened, one recounted by prosecution witnesses who were at the scene, in which the Accused made an abusive remark directed to the complainant then walked towards her and thrust his shoulder into her chest causing her to fall over backwards hitting her head on the ground. The second version was that given by the defence witnesses in which the Accused was at the scene when the complainant stepped backwards and fell over a dog.
…
11.It emerged from the evidence that earlier in the evening one or more of the girls had been swearing at Douglas Morgan, son of Darren and Shirley Anne Morgan and the Accused's nephew. Between about 1 am and 3 am on the day in question they learned of the incident and decided to go and speak to the parents of the girls, according to Darren and Shirley Anne Morgan. The Accused said Shirley was concerned about their niece Sarafina Bulsey, that she shouldn't have been out drinking. The Accused said they asked him to come along.
Then, after outlining the events of the evening leading to the decision of the Morgans to go to the Gore house, with some controversies about the timing and sequence of these preliminary events, her Honour came to the events at the place where the alleged assault was said to have occurred.
16.It was a scene of confrontation. I accept and find that the Morgan's arrived together, and despite the construction which Darren Morgan tried to put on the event, namely the need, as parents, to speak to the parents of the 'young ladies', they confronted the young girls and Kylie Gore. I accept that they were yelling and swearing at the girls and the girls were responding. In the midst of the confrontation, in a heated and threatening environment, the accused and the complainant exchanged words. The Accused said something to the effect of 'You're a smart c…', walked up to her and used his shoulder to push her in the chest, causing her to fall backwards on to the ground hitting the back of her head.
17.I have carefully considered the evidence and submission regarding contamination of the evidence. Undoubtedly the girls and Kylie Gore discussed the event the following morning. Angelina Birch said they had to tell the complainant what happened so she could remember it to put in her statement. My findings do not rest on the evidence of the complainant. I do not accept that Kylie Gore, a mature woman who had not consumed alcohol that night and the girls sat around the morning after and concocted a story, or indeed convinced themselves by retelling the story. It is to be expected that there would be discussion the following morning on the events hours earlier. A mob led by 2 grown men had come to confront a group of very young women, with one adult female among them. Each of them was cross examined vigorously and rejected the camp dog proposition.
18.On the issue of whether the complainant was affected by alcohol I am satisfied that she had consumed alcohol earlier in the evening. The incident involving the Morgans however was probably 4 or more hours later. I do not accept that she was unsteady on her feet at the time the Morgan's arrived or that she fell over backwards as a consequence of being affected by alcohol. That conclusion is based on the evidence of Kylie Gore and the other girls who gave evidence. Shirley Anne Morgan did not refer to the complainant being affected by alcohol.
19.Darren Morgan attempted to persuade the court that he and his wife were acting reasonably in going around to see the parents of the young girls, that the girls were drunk, that the Accused was standing behind him. He said, and repeated, he was 'confronting' Kylie Gore when a brown dog walked behind the complainant. He denied that the Accused was walking towards the complainant when she fell over.
20.The Accused maintained he did not say anything at the house. When it was put to him he said the words 'smart c…s' he denied saying that commenting he would not do that to anyone else's kids. He said he was walking up when he saw the complainant, right in front of him, fall over a camp dog. He denied that he shoved the complainant in the chest saying if he had done so they said she would be a lot worse, referring to his own size by comparison with the complainants'. For the record I observed the Accused to be a big man, tall and very solid build.
…
24.I do not accept the evidence of the Accused or Darren Morgan. Darren was at pains to paint his motives and actions in the best light possible, and the behaviour of the girls in the worst, and to protect his brother, the Accused. He lied about trying to call the police, his wife told the truth on that point. The Accused was not truthful when he said that he said nothing at the house. He was not truthful when he said the kids were laughing after the complainant fell over. Each of Kylie Gore and the girls said the complainant was crying and they went to pick her up.
25.Shirley Anne Morgan told the truth when she said that he was talking to the complainant and that he walked towards her. That was only partly true though; in fact he abused her, before walking up to her and thrusting his shoulder into her chest causing her to fall over backwards hitting her head. Shirley Anne too sought to protect her family. That was clear from her evidence regarding the consumption of alcohol by her husband and the accused earlier in the evening. She denied that they had consumed any alcohol whereas the two men conceded the consumption of several cans each.
26.I do not believe the dog story. I am satisfied that Kylie Gore, Angelina Birch and Sarafina Bulsey were telling the truth when they said that the complainant was shoved by the accused thrusting his shoulder into her chest.
27.For these reasons I find the charge proved beyond reasonable doubt.
The victim, Kailah Desley‑Anne Gallagher, was at the time aged 15 years. After hearing submissions in relation to sentence on 29 September 2009 at which counsel for the appellant submitted that some form of non‑custodial disposition should be selected, her Honour went on to impose sentence saying:
Now, in sentencing you today, I note that the victim of the assault was 15 years old at the time. On your evidence you were 42 years old or thereabouts, and the assault consisted of you applying force with your shoulder to her chest, causing her to fall backwards and hit her head on the ground. At the time, and now, you are a mature man, she was a young girl.
I accept for sentencing purposes that other than pain, immediate distress, there was no significant or ongoing injury that required treatment, medical attention. However, your behaviour in the context in which it occurred, the context in which your assault was committed, no doubt would have caused fear and intimidation. Even though she was to some extent affected by alcohol and was responding to abuse directed to her, there was no justification whatsoever for the assault upon her.
The event that appears to have precipitated the confrontation was an occasion of your nephew, Douglas, being abused by two young girls, roughly of the complainant's age, and you, together with your brother and sister-in-law and various other people, in the middle of the night, about 2, 3 o'clock in the morning, went to the house where the complainant was staying. And in the context, despite evidence led for the defence to the effect that it was intended to speak to the parents and sort the matter out, there can be no other conclusion than your brother, sister-in-law and yourself were intent upon confrontation.
You and other family members went around to the house where the victim was staying. There were four other girls and only one adult, female adult, Ms Kylie Gore. You had no business being there at all, and you played a role in the abuse of the complainant before then assaulting her.
Now, family violence in Wyndham is all too prevalent. This court is not saying that you are responsible for the ongoing family violence that occurs in Wyndham; however, this was an occasion where you, your brother and your sister-in-law, with other young people, went around in the middle of the night to confront some young girls, and the assault must be seen squarely within that context.
Your conduct was an exercise in bullying, intimidation of the worst kind ‑ an assault upon a young girl in the presence of other young girls. I accept for sentencing purposes that the injury is at the lower end rather than a significant injury to physical or mental well‑being; however, the context here, you and your brother leading a mob to confront a bunch of young women and then assaulting the complainant, is one that calls for, and I find that there no alternative but a term of imprisonment.
There will be a term of imprisonment. It will be nine months. It will be made cumulative and you will be made eligible for parole…
It will be recalled that the grounds of appeal are, essentially:
1.The leaned magistrate erred in fact by rejecting the evidence of the accused and the two defence witnesses leading to an unsafe and unsatisfactory verdict; and
2.The learned magistrate imposed a sentence that was manifestly excessive in all the circumstances given (a) to (e), (see [9] above).
At the trial the prosecution had called six witnesses: the complainant, three of her cousins (the other girls living with her at her aunt's flat), the aunt, and a police officer. The appellant himself gave evidence and further evidence was given by his brother and his brother's wife. Essentially, there were two versions of the events. The version which the learned magistrate accepted involved the appellant rushing forward and knocking the complainant over by pushing her in her chest, causing her to fall and hit her head on the ground. This was denied by the appellant, whose case was that she had moved backwards herself and tripped over a dog and fell accidentally.
In support of the appeal, counsel for the appellant submitted that the learned magistrate did not articulate reasons for accepting the evidence of the prosecution witnesses, wrongly rejected the evidence of defence witnesses and did not approach the assessment of the evidence of witnesses in a balanced way. This led on to a submission that, on the evidence, a reasonable possibility of innocence remained so that the charge should have been dismissed: R v Standley (1996) 90 A Crim R 67, and that, viewed as a whole in the light of the transcript and the reasons for decision, the possibility cannot be excluded that the learned magistrate engaged only in a choice between the competing versions of fact rather than being satisfied that the prosecution version could be accepted beyond reasonable doubt. If that had been the approach, there would have been an error. R v E (1995) 89 A Crim R 325 and R v Towner (1991) 56 A Crim R 221.
As a consequence, the submissions for the appellant undertook a detailed review of the evidence of each of the witnesses pointing to factors which, so counsel for the appellant submitted, should lead to a rejection of the prosecution case. For example, attention was given to denials by the complainant that she had been very drunk, although she did admit having been drinking during the evening. Attention was given to the evidence of the aunt in which she claimed that she did not think that the complainant had been drinking and that the other girls did not look like they were drunk. More submissions were made about evidence of the other girls concerning the extent to which they had been drinking that evening and the extent to which they denied being drunk at the house where the alleged offence occurred. It was the aunt who said in cross‑examination that the old dog may have been alive at that time and that there were lots of other camp dogs around the area, but she denied specifically the possibility that there was a dog at the scene or that the complainant had fallen over a dog. The assertion that the complainant had tripped over a dog was first made by the appellant to the investigating police sergeant on the following day.
This led to the submission on behalf of the appellant that the evidence that there was no possibility that there were camp dogs in the vicinity at the time was indicative of the adoption of a prepared 'no camp dog position' by the prosecution lay witnesses and a lack of preparedness to concede a rational proposition. It was also submitted that there was a denial about the true extent of intoxication by the complainant and the other girls, leading to inconsistencies in their evidence.
The appellant gave his version of events, which included his explanation that when he was at the passenger door of the vehicle he saw the figure of a girl and that she fell over a dog right in front of him, and that some of the kids started laughing. His brother gave evidence about the complainant and the young girls appearing to be very drunk and swearing and abusing them, and that the complainant, because she couldn't stand in her state, stepped backwards and fell over a dog. The brother, Darren Morgan, admitted to having drunk five XXXX cans of beer and said that he thought that the appellant had had a couple of cans, possibly four. He claimed he saw a brown dog walk behind the complainant at one point. This version was confirmed by the appellant's wife, who in cross‑examination said that the appellant was not drinking.

In support of the submission that the conviction should be set aside as being unsafe or unsatisfactory, counsel stresses that it is the obligation of this court to make its own independent assessment of the evidence: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. Reference was made to the passage in the judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 where their Honours said:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
Because of the doubt said to have been raised from the discrepancies in the evidence of the witnesses, the appellant submits that this conviction should be set aside.
In the light of these submissions, it is necessary to reconsider the findings of the learned magistrate in the light of the evidence and the criticisms which have been raised. Her Honour found that the crucial issue was whether or not the complainant stepped backwards and fell over a dog or, rather, as was alleged by the prosecution, she had been pushed in the chest by the appellant using his shoulder, causing her to fall backwards and hit her head on the ground. Importantly, her Honour accepted that the witnesses, the complainant and two of the girls, were telling the truth when they said that the complainant was shoved by the appellant pushing his shoulder into her chest.
Other findings made by the learned magistrate included:
•the vehicle or troop carrier driven by the Morgans arrived at the house at the reserve carrying Darren and Shirley‑Anne Morgan, the appellant, two of their teenage children, Bronson Morgan and his girlfriend and probably Brian and Terry Narrier;
•that the Morgans arrived together and confronted the young girls and their aunt and that they were yelling and swearing at the girls and that the girls were responding;
•the appellant said something to the effect of 'You're a smart c…' to the complainant, walked up to her and used his shoulder to push her in the chest, causing her to fall backwards on to the ground, hitting the back of her head;
•that the aunt and the girls did not concoct any story about the incident;
•that although the complainant was affected by alcohol, she was not unsteady on her feet and did not fall because of alcohol consumption;
•that the evidence of the appellant was untruthful and that his brother was trying to protect him;
•that there were other inconsistencies between the appellant's wife's evidence and the other defence witnesses; and
•that the learned magistrate did not believe the dog story advanced by the defence witnesses.
There was obviously a significant issue of credit involved in the estimation of the reliability and/or truthfulness of the evidence of the various witnesses. The learned magistrate was in a position of advantage in estimating the reliability and truthfulness of the witnesses, by seeing them give evidence and undergo cross‑examination. This brings into application the principles enunciated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 and further discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. As recently described by Martin CJ in The State of Western Australia v JWRL(a child) [2010] WASCA 179 [42], his Honour explained that those principles provide that where a finding by a trial judge is based to a substantial degree on the assessment of a witness's credibility, there should be a presumption in favour of preserving the judge's finding unless the judge has acted on evidence which is inconsistent with the facts which are incontrovertibly established by the evidence. In Fox v Percy it was acknowledged that such a finding could be set aside if it were concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case. McHugh J observed that an appellate court is entitled to set aside a trial judge's finding based expressly or inferentially on demeanour if there is something that points decisively and not merely persuasively to error on the part of a judge acting on his or her impressions of a witness or witnesses.
There is nothing in the evidence to suggest that the learned magistrate made any errors or omissions of the kind which would permit this court to set aside such a finding or verdict. It was obviously significant to her Honour that these events occurred at about 2 o'clock in the morning, if not later, and were initiated because the appellant, and the members of his family, decided to go and remonstrate with the young girls because they had allegedly been swearing at his son some time earlier in the evening. That such a visit for this purpose was ill‑judged and impetuous does not need to be emphasised, but it plainly supports the learned magistrate's conclusion that the appellant went to the complainant's home with an attitude of confrontation. The learned magistrate accepted that the girls, and in particular the complainant, had been drinking and made allowance for that in reaching her conclusions, but she was impressed by the evidence of the aunt, who confirmed the evidence of the complainant and denied the assertion that there had been a dog leading to the girl tripping and falling.
Nor was this a decision by the learned magistrate between two possible alternatives, each of which was a reasonable explanation. Her Honour was aware of the need for the prosecution to prove its case beyond reasonable doubt and made her findings based on all the evidence that she was satisfied that the case had been proved, in the process concluding that the evidence of the appellant and his brother were untruthful and that the evidence of the appellant's wife was unreliable. Her Honour was plainly justified in reaching the conclusions which she did and there is no basis for setting aside any of them or to disturb the judgment of conviction on the ground that, for any reason, it is unsafe or unsatisfactory.
Accordingly, this appeal against conviction must be dismissed.

SJA 1043 of 2010 - appeal against sentence

This sentence was, as already stated, an immediate term of 9 months' imprisonment, to be served cumulatively upon the pre‑existing terms of imprisonment which the appellant was then serving. For the appellant, it is submitted that this was an extraordinarily and manifestly excessive sentence.
The learned magistrate accepted that the objective seriousness of the injury was towards the lower end of the scale because the complainant did not suffer any lasting injury, although experiencing short‑lived pain and discomfort. For the appellant, it is submitted that there was no deliberate blow struck with a hand or fist but, rather, what occurred was a shove, with no suggestion of associated threats or intimidation. I do not consider that that submission can be entirely accepted. The arrival of the appellant and his family at the complainant's home at that hour of the morning, in an agitated and argumentative condition, and wanting to remonstrate about the conduct of the girls earlier in the night, was obviously confronting and threatening. He swore at and abused the appellant and then moved quickly towards her and knocked her over. The appellant was a 42‑year‑old, strongly‑built male confronting a 15‑year‑old girl in her own home in the early hours of the morning. It was a gross intrusion and an act of violence, notwithstanding that, fortunately, its physical consequences were not serious.
At the time of sentence the appellant had a lengthy record for a variety of minor offences, many involving drinking, assault and violence. Her Honour formed the view that there was no alternative but imprisonment and imposed the sentence now under appeal. It is submitted for the appellant that that was based on a flawed assessment of the objective seriousness of the offence. The appellant's counsel developed his submissions in this regard by observing that although the learned magistrate made no mention of totality in her reasons, if one were to assume that the sentence imposed was ameliorated to some degree (because of the fortunate lack of more extensive injury) then the starting point, whatever it may have been, selected by the learned magistrate must have been excessively severe and so an error. On the other hand, so it was submitted, if the magistrate failed to have regard to the totality of the accumulated sentence, then that would, so it was submitted, amount to an error.
The sentences which the appellant was serving when this penalty was imposed were two concurrent sentences for 8 months and 15 months following convictions on 20 March 2010, but for assaults committed on 27 September 2008 and 1 November 2008. They were quite separate charges for offences in connection with a different victim. They were not part or a continuation of any one pattern of offending and, accordingly, justified separate additional punishment subject to the principle of totality.
The aggregate effect is that the appellant is subject to a total period of 24 months' (2 years) imprisonment as a result of all three offences and was made eligible for parole. He had served almost 18 months of those combined sentences by the time he was released on bail pending these appeals by Blaxell J on 28 April 2010.
Counsel for the respondent submits that this sentence should not be set aside or varied because, although it may be severe, it does not fall outside the proper discretionary range: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672. In reaching that ultimate submission, counsel for the respondent began by referring to s 6(1) of the Sentencing Act 1995, which directs that a sentence must be commensurate with the seriousness of the offence, and that this is to be determined by taking into account the statutory penalty for the offence, the circumstances of the matter, any aggravating factors and any mitigating factors (s 6(2)). In particular, a sentence of imprisonment should not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.
In approaching an appeal against sentence any appellate court may intervene if a material error of fact or law is apparent in the sentencing judge's reasons or if error can be inferred because the result is manifestly excessive: Dinsdale v The Queen. Consequently, counsel for the respondent submitted that when determining whether or not a sentence is manifestly excessive, the court should view the sentence in the perspective of the maximum sentence prescribed by law for the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type, and with regard to the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342, referred to with approval by McLure J in Mourish v The State of Western Australia [2006] WASCA 257.
In relation to appellate review of discretionary judgments, and in particular discretionary sentences and the well‑known principles contained in the decision in House v The Queen, Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64 [58] ; (2001) 207 CLR 548, 605:
Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess of manifest inadequacy. In the second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
In this particular case, the mitigating circumstances were limited. There had been no plea of guilty. The personal circumstances of the appellant, including his lack of good character because of prior convictions, and his impetuous conduct in going to the complainant's home when he did, are not factors which warrant leniency. His antecedent criminal history, while not an aggravating factor, is nevertheless relevant to show whether the instant offence was an uncharacteristic aberration or whether it reflected a continuing attitude of disobedience of the law: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465.
This particular assault committed on 4 October 2008 was a relatively short time after the assault occasioning bodily harm committed on 27 September 2008 and it pre‑dated the later assault occasioning bodily harm on 1 November 2008 for which he had been sentenced on 20 March 2009.
The maximum penalty for the crime of aggravated common assault is 3 years' imprisonment and a fine of $36,000 (s 313(1)(a) of the Criminal Code).
Factors considered relevant to the sentencing and mentioned specifically by the learned magistrate were:
•the complainant was 15 years old and the appellant was about 42 years of age;
•the assault was committed by the appellant hitting the complainant in the chest with his shoulder, knocking her over backwards and causing her to hit her head on the ground;
•no significant or continuing injury to the complainant occurred requiring medical attention;
•the assault was committed in circumstances which would have caused fear and intimidation and was quite unjustified;
•after a verbal altercation involving the appellant's nephew, earlier in the evening with two young girls, the appellant, his brother, sister‑in‑law and other persons went to the complainant's house intent upon confrontation;
•the appellant played a role in abusing the complainant before assaulting her;
•the assault must be viewed in the context of the appellant and others confronting some young girls in the early hours of the morning at their home; and
•the assault upon the complainant was in the presence of other young girls.
By s 6(4) of the Sentencing Act 1995 no sentence of imprisonment could have been imposed unless her Honour had decided that the seriousness of the offence meant that only imprisonment was justified or the protection of the community required it, and such a sentencing option could not be used unless her Honour was satisfied that any of the other less serious options in s 39(2) of the Sentencing Act 1995 was appropriate. Her Honour plainly concluded that this was a case where the seriousness of the offence was such that only imprisonment could be justified. Her conclusion was that the appellant's conduct 'in leading a mob to confront a bunch of young women and then assaulting the complainant' was such that 'there is no alternative but a term of imprisonment'. I do not see how error can be demonstrated in this approach.
For a middle‑aged man to attack a young girl in any circumstances is serious. To do so in the small hours of the morning at the girl's home is worse. To do so when the assailant has gone to the home with a group of his family for the express purpose of remonstrating with the girl and her friends because of some alleged objectionable conduct to his son earlier in the night, and then to cause a commotion, is almost guaranteed to lead to a breach of the peace. The four women at the house were outnumbered. There were no men to protect them and the entire situation was very alarming. I consider that in these circumstances the learned magistrate was justified in concluding that an immediate sentence of imprisonment was necessary to mark the seriousness of the offence and that other non‑custodial forms of disposition were not appropriate having regard, particularly, to the appellant's prior record and the episodes of violence in which he had been involved around the time when this offence was committed.
The question which remains is whether or not a sentence of 9 months' imprisonment was itself excessive or whether, having regard to principles of totality, it should have been ordered to be served either wholly or partly concurrently with other terms of imprisonment which the appellant had then been serving.
In my view, the imposition of an immediate term of imprisonment of 9 months for this offence was justified having regard to the nature and gravity of the appellant's conduct and the absence of mitigating circumstances other than, fortunately, the relatively minor nature of the injuries inflicted. However, to impose such a sentence in addition to the period of 15 months' imprisonment which the appellant was by then serving has produced an effective aggregate sentence of 24 months' imprisonment, which I consider infringes the principles of totality: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 307 ‑ 308 (McHugh J; Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25] (McLure JA); and Pollock v The State of Western Australia [2009] WASCA 121 [24] ‑ [25], [54] (Owen JA) and [96] ‑ [103] (Miller JA).
I consider that the 9‑month period of imprisonment imposed for offence committed on 4 October 2008 should have been ordered to have been served partly concurrently and partly cumulatively upon the sentences then being served by the appellant. This is an order which is authorised by s 88(3) of the Sentencing Act 1995. I consider that the term of 9 months' imprisonment for this assault was appropriate in itself to reflect the seriousness of the conduct of the appellant and the need for general and special deterrence. However, having regard to his existing terms of imprisonment, I consider that the order requiring the appellant to serve the whole of that sentence in addition to the sentences which he was then serving has resulted in an aggregate sentence which is excessive. I would, therefore, allow this appeal against sentence but only to the extent of directing that part of the sentence should be served concurrently with the earlier sentences and part cumulatively.
In my view, 6 months of the 9‑month sentence should be concurrent with the earlier sentences and 3 months of the sentence should be served cumulatively upon those earlier sentences. The result of this it that, in the aggregate, the appellant is required to serve a total of 18 months' imprisonment for all the offences and the commencement of that period of imprisonment remains backdated so as to take effect from 1 November 2008. The appellant should remain eligible for parole under each of the three sentences.