Myers v Brigden - [2015] WASC 464

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MYERS -v- BRIGDEN [2015] WASC 464

CORAM: TOTTLE J

HEARD: 14 OCTOBER 2015

DELIVERED : 4 DECEMBER 2015

FILE NO/S: SJA 1056 of 2015

BETWEEN: JORDAN RAY MYERS
Appellant
AND
LAUREN KAYE BRIGDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D WEBB
File No  :GN 12 of 2015, GN 13 of 2015, GN 388 of 2015

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence was manifestly excessive - Whether denial of natural justice or procedural fairness - Turns on own facts

Legislation:

Criminal Code (WA), s 317(1)
Sentencing Act 1995 (WA), s 27

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Ms S E Wisbey

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337
Clarke v The State of Western Australia [2013] WASCA 197
Holden v The State of Western Australia [2009] WASCA 50
House v The King (1936) 55 CLR 499
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shoard v Van der Zanden [2013] WASC 163
Wilson v The State of Western Australia [2010] WASCA 82
TOTTLE J:

Introduction

The appellant appeals against a sentence of a term of imprisonment of six months and one day, suspended for seven months, imposed on him on 22 June 2015 in the Magistrates Court of Western Australia in respect of an offence of assault causing bodily harm, contrary to s 317(1) of the Criminal Code (WA).
The offence was committed in the centre of Geraldton in the early hours of 1 January 2015. The appellant and the victim, who was with his girlfriend, were making their way to different entertainment venues. Their paths crossed, an altercation took place and the appellant punched the victim, who fell to the ground. The victim sustained serious facial injuries involving fractures to his left eye socket, his left cheek bone and jaw and required surgery.
The appellant was also charged with the offences of disorderly conduct in public and obstructing a police officer. The appeal does not concern those offences.
On 29 January 2015 the appellant appeared before his Honour Magistrate Lawrence of the Magistrates Court of Western Australia and pleaded guilty to the charges. Sentencing was adjourned to 13 March 2015 to allow a mediation report to be prepared pursuant to s 27 of the Sentencing Act 1995 (WA). On 13 March 2015 the appellant appeared before her Honour Magistrate Webb, and the hearing was adjourned. There were three further sentencing hearings on 4 May, 15 May and 8 June before the appellant was finally sentenced on 22 June 2015.

The facts

The appellant admitted the material facts as alleged by the prosecution. Those facts were as follows. At about 2.20 am on Thursday, 1 January 2015, the victim was walking with his girlfriend on Lester Avenue in Geraldton towards The Camel Bar. At the same time, the appellant was walking towards The Vibe nightclub.
The victim and the appellant crossed paths and exchanged words. The appellant was approximately three metres away from the victim when he stopped, turned around and said, 'What the fuck did you say, cunt?'
The appellant approached the victim in an aggressive manner. At this point the victim's girlfriend intervened and stood between the appellant and the victim. The victim's girlfriend attempted to push the accused away, saying, 'Leave it, Jordan'.
The police were driving on Lester Avenue and witnessed these events. As the police exited their vehicle the appellant reached past the victim's girlfriend and punched the victim in the face with a closed fist.
The victim fell to the ground and the appellant continued to yell and swear. The police arrested the appellant and he was taken to the police station. The appellant's explanation for the assault was that '[the victim] called me a bitch and threatened me. [The victim] challenged me to fight. I felt threatened.'
The appellant was 23 years old at the time of the offence. He was approximately 190 cm tall and of medium build. The victim was 19 years old, 170 cm tall and of medium build.

The appeal grounds

In the course of the hearing the appellant's counsel applied to amend the appeal notice by adding a ground of appeal. I granted leave to amend the appeal notice and granted the respondent leave to file written submissions in response to the additional ground of appeal. In their amended form the grounds of appeal are as follows:
1.The sentence was manifestly excessive in that the wrong sentence was imposed and a fine or other penalty was the proper sentence in all the circumstances.
2.The magistrate erred in breaching the rules of natural justice/procedural fairness in proceeding to sentencing on 22 June 2015 in the absence of counsel who had represented the appellant on the matter at prior court appearances.

Procedural history before the Magistrates Court

It is necessary to refer to the procedural history in some detail in order to obtain a proper understanding of the submissions made to the magistrate, how the sentencing process unfolded in the light of those submissions and to put the grounds of appeal in their proper context.

13 March 2015

As noted, following pleas of guilty on 29 January 2015 sentencing was adjourned to 13 March 2015 to enable a mediation report to be provided to the court.
On 13 March 2015 the appellant's counsel, Ms Turtley-Chappel, provided the magistrate with written sentencing submissions. Those submissions recorded that the material facts in respect of the assault occasioning actual bodily harm offence were 'accepted in full'. The submissions set out the following information relating to the appellant's participation in mediation, criminal history and personal circumstances:
Mediation
12.Mr Myers appeared in court on 29 January 2015 and entered pleas of guilty to all charges. These matters were adjourned to allow Mr Myers an opportunity to engage in Victim Mediation.
13.A report from the Victim Offender Mediation Unit was ordered for sentence.
Criminal History
14.Mr Myers has no prior criminal record in Western Australia or in any other Australian Jurisdiction.
Personal History
15.Mr Myers is 23 years of age and resides with his parents in Geraldton.
16.Mr Myers completed his high school education in Geraldton Senior College and in August of 2011 he was awarded a basketball scholarship to an American Prep College and Training Academy in Charlotte, North Carolina. He then attended McCook Community College in Nebraska, USA for his 2012/2013 Freshman year and basketball season.
17.When Mr Myers returned home to Geraldton in 2013, he engaged with the Department of Sport and Recreation and local community organisation ATLAS (Access To Leisure And Sport Inc.) as a respite recreation buddy, basketball coach and mentor.
18.ATLAS is a not-for-profit charity organisation committed to increasing people with disabilities access and inclusion in the Mid‑West community.
19.In addition to this work, Mr Myers has maintained gainful employment throughout his adult life. He is currently employed by SRS (Specialised Reline Services) on a casual basis and also works as a casual labourer.
The written submissions then set out the basis upon which the appellant sought a spent conviction order. In the course of those submissions reference was made to the fact that the appellant had engaged in two psychological counselling sessions with a registered psychologist and had attended his doctor to discuss feelings of depression he had experienced. Reference was also made to an intention on the part of the appellant to engage the Midwest Community Drug and Alcohol Service.
The written submissions attached four character references attesting to the appellant's prior good character.
The submissions concluded with the following five points:
Sentencing submissions
38.Mr Myers is a young man who comes to court in relation to three charges that all occurred during celebrations on New Year's morning.
39.Mr Myers has taken full responsibility for his offending at the earliest of opportunities and has positively engaged in the Court's Mediation programme.
40.Mr Myers is genuinely remorseful for his actions evidenced by the references attached and filed with these submissions.
41.Mr Myers has satisfied the conditions that must be met before the discretion to grant a spent conviction order is enlivened.
42.Given the steps Mr Myers has taken since the offence, his remorse and his early plea of guilty it is respectfully submitted that this matter could be dealt with by way of a financial penalty.
A mediation report dated 10 March 2015 was provided to the magistrate at the hearing on 13 March 2015. The report referred to Facebook messages exchanged between the appellant and the victim and the appellant and the victim's girlfriend. In respect of the messages between the appellant and the victim's girlfriend, the author of the report recorded that the victim said that the messages seemed 'okay' to start with and then became abusive (the word 'abusive' was the author's choice of word used to summarise the tone of the messages).
The relevant Facebook exchanges were as follows:
APPELLANT: Ok well I sent him a message hope we can put it behind us I don't want any drama I hate this feeling
VICTIM'S GIRLFRIEND: Okie dokie well you two can sort it out
APPELLANT: yeah we will but I just want u to know that Im already getting charged by the police and I have to to court I owe money to the bank and Im in heaps of debt from fines from the court my life is a'ready fucked atm so plz convience him not to press charges against me cos Im already fucked
my life is hard enuff atm L
VICTIM'S GRILFRIEND: should have thought about that before you hit him he is having a hard life too and you've added another to his problems
APPELLANT: i wasn't thinking too straight obviously I was fucked up and he should have thought about it too before he ran his mouth at me huh
VICTIM'S GIRLFRIEND: He didn't even say anyth bad to you
APPELLANT: haha fuck off mikayla I thought we were friends wel I suppose its gonna be me against use two
he called me a bitch out loud like 3 times he started it
VICTIM'S GIRLFRIEND: Use both said shit to each other
APPELLANT: bullshit I said to both of use when use walked past happy new years guys!!! he said shit then I snapped
even Brandon is a witness to that he reckons he was being a fuckedhead too when we walked past use
VICTIM'S GIRLFRIEND: Well I don't Remember I was too drunk use both bad mouthed each other and I know that for a fact then you punched him which what this whole thing is about but like I said msg him because its between you two boys
APPELLANT: yeah no worries we wil im waiting for him to reply hopefully he can be mature about it and no go off at me on messagenger just be calm about it he doesn't have to like me or be nice but
At the hearing on 13 March 2015 the magistrate expressed the view to Ms Turtley-Chappel that imprisonment was clearly a sentencing option which was open. Her Honour pointed out that whether or not the sentence was suspended, a spent conviction order could not be granted in the event that those sentencing options were selected.
Ms Turtley-Chappel responded as follows (ts 5):
It does, your Honour, and that's why I would initially make the submission that that's not appropriate. I would say that it's not at that point. It's not entirely unprovoked. There is some background to the matter and there has been a previous issue in relation to the complainant and Mr Myers. It has rehashed again on this particular night. He was intoxicated, but he has gone to some lengths to address that.
Ms Turtley-Chappel also referred to the possibility that depression that the appellant had suffered may have contributed to the appellant's conduct.
A discussion ensued between the magistrate and Ms Turtley-Chappel in relation to the appellant's mental health, the history between the appellant and the victim and the magistrate's desire for some clarification of the passages in the Victim Mediation Report referring to the 'abusive' Facebook messages. In the course of those exchanges Ms Turtley‑Chappel made the following submissions about the history between the appellant and the victim (ts 8 - 9).
HER HONOUR: ... I mean, yes, he is a first offender, yes, he is very young, yes, he has good prospects, but the offence is incredibly serious. Now, you're saying that there was mental health - you know, he is suffering depression, there's a history between him and the victim. Well, I want more information in regards to that.
TURTLEY-CHAPPEL, MS: Your Honour, I'm not saying that there is an extensive history. The history is quite limited and I think it's simply a case of Mr Myers has previously had an interaction with the victim. He has been called a bitch by the victim previously. On this night, again he walked him. He calls him a bitch again. That instigates Mr Myers to say, "Well, what's wrong? What's - I have no idea why you're calling me this. You know there's nothing before before us."
…
It's Mr Myers' position that on the night the victim called him a bitch, and he was explaining to the victim that that's why he was so upset. Because he had previously also called him a bitch, and he had no idea why that was. They weren't friends. They didn't really know each other. They had seen each other around. And that's why things escalated. He shaped up to him I think with the words that are referred to in my submissions, and Mr Myers has then proceeded to punch him.
The magistrate adjourned the sentencing hearing to 4 May 2015 so that further materials could be put before the court including: the victim's statement; the victim's girlfriend's statement; a victim impact statement; clarification of the references in the Victim Mediation Report to abusive messages; and information as to what was being explored in the course of the counselling being undertaken by the appellant and substantiation that he was suffering from depression (ts 9 - 10)

4 May 2015

At the hearing on 4 May 2015 the court was provided with a victim impact statement. Ms Turtley-Chappel appeared on the appellant's behalf once again. The material facts were read by the prosecution. Ms Turtley‑Chappel made further submissions in mitigation. In relation to the history between the appellant and the victim, Ms Turtley-Chappel made the following submissions in the course of exchanges with the magistrate:
TURTLEY-CHAPPEL, MS:   Yes, your Honour. In relation to the facts, I would note that Mr Myers and the complainant in this matter, or the victim in this matter, they didn't know each other well but what they did know of each other, there was some hostility from the complainant's perspective towards Mr Myers. And we think - we obviously cannot be sure - cannot say exactly what the position of the complainant was, but his girlfriend had a very close relationship with Mr Myers and it may have been that there were some issues with that relationship. (ts 4)
…
TURTLEY-CHAPPEL, Ms: Yes. So there was two prior incidents. One was on Facebook some months prior. The complainant had called Mr Myers a 'bitch' on a comment on Facebook.
…
TURTLEY-CHAPPEL, Ms: It was simply a post. Mr Myers was in that picture and this complainant made a comment that he was a bitch. Mr Myers has no idea where that came from. They didn't know each other. The second incident was at a party where they were both together and Mr Myers said that he gave him dirty looks and he ended up leaving. (ts 6)
Well, your Honour, if your Honour was to make the inference that my client was the instigator and the aggressor and the only person in this scenario that was like that, then I would submit that it needs to go to a trial on the issues. My submission is that there was aggression from both aspects. There was a history. It was very limited. It was those two incidents that I've spoken of. (ts 8)
HER HONOUR:   And they were months prior, weren't they?
TURTLEY-CHAPPEL, MS:   One was - perhaps I could just confirm. It was the other way around, your Honour. The party was the first and then the Facebook incident was about three or four weeks beforehand.
Ms Turtley-Chappel completed the plea in mitigation and the prosecution addressed the court in relation to the spent conviction order and made brief submissions as to why such an order should not be made.
The magistrate then proceeded with sentencing. Her Honour's remarks extend over four pages of transcript. I set out below what was said by her Honour in relation to the history between the appellant and the victim, as it was her Honour's approach to this issue which was the focus of the appellant's submissions on the application for leave to appeal.
If the injuries suffered by the victim are put to one side, the assault is still a serious example of an assault occasioning bodily harm. The accused was intoxicated and claims that the victim swore at him. I make no formal finding on this point, but I do have regard to the comments of the victim in the mediation report. Today, counsel have put to me that there has been a history of, I suppose, bad blood - for want of a better expression - between both the victim and the accused, and refers to two previous incidents in which the victim allegedly told the accused he was 'a bitch'.
However, as I've already indicated, in the victim mediation report, the victim seems to have some degree of sympathy for Mr Myers and there is nothing in any of the reports before me from the victim which indicates any degree of hostility towards Mr Myers - any criticism of Mr Myers. There is nothing before the court, as I say, from the victim, that gives any indication of there having been a previous history of bad blood between these two men.
Even if the victim had said what the accused alleged, his response was grossly excessive and unjustified.
…
I note that defence submits that it was the victim who was the aggressor and in submissions stated it was the victim who stepped forward in deciding to fight the accused. That was the submissions made on the previous occasion when this matter was before the court.
As I've indicated, I find these submissions somewhat at odds with the statement of facts that was accepted by the accused, and I also note that the incident was witnessed by two police officers. Relevantly, the facts state that the accused approached the victim in an aggressive manner. The victim's girlfriend intervened and said, 'Leave it, Jordan'. I also note that, in the victim mediation report, that the victim said the accused knew his girlfriend and he denied any suggestion that he called the accused a 'bitch' on four occasions.
I also note the exchange on Facebook between the victim's girlfriend and the accused. I do not find that those exchanges really do any favours to the accused. The apology and the associated exchange, to my mind, indicate that the accused was more concerned about being charged and having to make financial amends to the victim. I also note that towards the end of the exchange the accused attempts to justify his behaviour on the basis that the victim was 'being a fuckhead' at the time.
There is no doubt that the offending was in a large measure as a result of the accused's self-intoxication. His intoxication affords him no mitigation. The offending can only be described as a grotesque reaction to a perceived insult. It was a wanton vicious attack. the accused struck the blow, notwithstanding the victim's girlfriend placing herself in front of the accused in presence of police. The blow was struck to the victim's face.
The victim did not provoke the assault. Now, I say that in terms of and in response to what Ms Turtley‑Chappel is saying. There is nothing before the court that would suggest that the victim provoked the assault, and, as I've already made an observation of, even if words were exchanged between them prior to the assault occurring - and I make no formal finding in regards to that - there is nothing that wold give rise to the defence of provocation in regards to the assault.
At most, there was a verbal exchange between the parties as they crossed each other on the street, but I can't take that matter any further, and it has been indicated when you read the statements of the witnesses and also, clearly, the accused in this matter, all the parties were heavily intoxicated. The accused was intoxicated, the victim was intoxicated, the victim's girlfriend was intoxicated, and some of the other statements made clearly indicate that witnesses were indicated. Yes, Ms Turtley‑Chappel.

At that point Ms Turtley-Chappel rose and made the following submission:
Your Honour, I apologise for [rising] during your sentencing remarks. The reason I rise is because your Honour had said that your finding was that Mr Myers was the only - the aggressor and was the only person who had thrown a punch. My concern is that Mr Myers' instructions are that the other person also threw a punch. It didn't connect with him, and that - - - (my emphasis)
The following exchange then took place between the magistrate and Ms Turtley-Chappel:
HER HONOUR:   And is there anything in the witness statements to indicate that a punch was thrown?
TURTLEY-CHAPPEL, MS:   I believe - I'm not sure. The prosecution - I did ask for all the statements. I've glanced over one of them today.
HER HONOUR:   And - I don't know - do we actually have statements from the police?
MORRISSEY, MS:   I don't think so, ma'am.
HER HONOUR:   Go and get statements from the police, Sergeant. Ms Turtley‑Chappel is obviously clearly not going to be satisfied with anything that the court says that does not afford with her submissions, and, at this basis, I would say we're going to have to program this matter for a trial on the issues, not that I see that it can go very far, given that, as I've already indicated, on the evidence before the court - on the statements before the court - everybody was heavily intoxicated. So all it's doing is prolonging the matter. But, therefore, Sergeant, I will put this over.
Can you get statements from the police witnesses since police were there and witnessed it. If you have them, I don't. And it can come back in three weeks. Thank you. Next.
The magistrate adjourned the matter to enable the statements from the police witnesses to be obtained and considered. The adjourned date was 15 May 2015 for 'mention only'

15 May 2015

At the hearing on 15 May 2015 the magistrate asked Ms Turtley‑Chappel whether she wanted a trial of issues. Ms Turtley Chappel responded as follows (ts 19):
I was hoping that - to put a position forward, whether your Honour accepted that position - if it wasn't accepted, then, yes, I would think it would need to go to a trial of the issues. The position of Mr Myers is that - that him and the complainant are both walking past each other. Words are exchanged. From Mr Myers' perspective, it's the complainant that initiates the words, and it is heated words. It is then - they both turn around.
They both approach each other, but Mr Myers accepts that he approaches faster and that, from his perspective, it is more of a fight about to happen. It's not a cheap shot. So he - from his position, he's saying it is both of them approaching each other, but he approaches faster, and - but he accepts that he did punch him.
The prosecution said that the police witnesses' statements were available in court. Ms Turtley-Chappel objected to the magistrate looking at the police witness statements.

The following exchanges then took place:
TURTLEY-CHAPPEL, Ms: …The issue was the - in your summation of finding, it was - your Honour had spoken about Mr Myers being the only aggressor in this situation.
HER HONOUR: No. I did say in my sentencing remarks it mattered not whether there was an exchange. It didn't matter what was said between the parties. The fact of the matter was, on the material facts as read, the girlfriend steps in between you and your – in between your client and the victim, and your client is intent upon assaulting him and assaults him, even with the girlfriend stepping in between saying, “leave it alone, Jordan.”
TURTLEY‑CHAPPEL, MS:   Yes. And that's accepted, your Honour. What we're saying is that the - that the complainant wasn't simply standing there. He was also in a state of - certainly, from Mr Myers' perspective, he was going to fight Mr Myers, and I think that is relevant, because it - it makes it, in terms of, perhaps, the seriousness of the offence, it - it makes someone less - - -
HER HONOUR:   Ms Turtley-Chappel, it doesn't matter. I mean, that's what I'm saying. Clearly, there is some - this wasn't a random act of violence upon somebody your client didn't know.
TURTLEY-CHAPPEL, MS:   Yes. That's correct.
HER HONOUR:   All right. So there's no issue there. It's not a random act of violence upon an unknown person. There was clearly some type of history between these men.
TURTLEY-CHAPPEL, MS:   Yes.
HER HONOUR:   What that history was doesn't alter your client's actions on the evening. As I have already said, I don't have to make a finding as to what the victim did compared to what your - to your client, because it's clear on the facts that there was an exchange between them.
TURTLEY-CHAPPEL, MS:   Yes. That's correct.
HER HONOUR:   There was an exchange between them. I don't need to make a finding on what the exchange was between them. You are not running provocation. You are not taking this matter to trial. So there is - something occurs between them. Both of them are heavily intoxicated. The girlfriend is heavily intoxicated. So you're dealing with three people that are drunk.
TURTLEY-CHAPPEL, MS: That's right.
…
HIS HONOUR:   But that's - what I said on the previous occasion is that I don't need to make a finding on what the exchange was. The exchange is clearly not enough to raise a defence of provocation, which is - so it's not raised. That's why your client pleaded guilty and pleaded guilty at an earliest opportunity.
I don't need to make a formal finding, because it doesn't - it doesn't matter, really, in many respects, what was happening, because your client's response to what was happening is completely disproportionate to whatever was happening, and that's the basis upon what you've pleaded. If you don't accept that principle of what I've just - - -
TURTLEY-CHAPPEL, MS:   That's accepted.
HER HONOUR:   - - - said, then you would have been going to trial - - -
TURTLEY-CHAPPEL, MS:   I - - -
HER HONOUR:   - - - and relying upon provocation. Your client's response to whatever this exchange was between these drunken people on the sidewalk, the mutual female friend, your client and the victim - whatever occurred - I don't know. They're all drunk. I don't make a formal finding on it, but what I am saying is that your client's response was aggressive and disproportionate to whatever happened, and that's what I've been saying. I don't need to make a formal finding to be able to say - - -
TURTLEY-CHAPPEL, MS:   And that's accepted.
HER HONOUR:   - - - that your client's response was excessive and over the top to whatever had occurred.
TURTLEY-CHAPPEL, MS: And I accept everything that your Honour has said. There - on a - on the previous occasion, I've obviously - there has been an issue, but I accept what your Honour is saying. With that position, we're happy to proceed.
HER HONOUR:   Well, I'm not going to proceed now, Ms Turtley‑Chappel, because I've got a busy list, and I wasn't expecting this to happen, because my understanding was it was going to be adjourned, and your client has an important matter that he needs to attend to today, doesn't he?
TURTLEY-CHAPPEL, MS:   Yes. He does.
The matter was adjourned to 8 June 2015 for sentencing.

8 June 2015

The appellant did not appear at the hearing on 8 June 2015. It seems that an application had been made for an adjournment on an administrative basis but that the relevant papers had not been made available to the magistrate to enable that to occur.
The magistrate raised an issue arising out of the witness statements of the police witnesses. It is apparent from the way the hearing proceeded that the magistrate had looked at the police witnesses' statements prior to the hearing. The magistrate informed Ms Turtley-Chappel that one of the police officers, Constable Brigden, recorded that prior to the incident in which the appellant had assaulted the victim, a police officer had issued a 'move-on' order to the appellant, who had been behaving aggressively. The magistrate outlined concerns that arose in her mind about the appellant's conduct as a result of reading the witness statement. There was a problem with the transcription service so not all of her Honour's remarks were transcribed. Having referred to that evidence and having noted in earlier remarks that all of the participants were drunk, her Honour said that she was not going to alter her position, which was that she could not make a finding as to exactly what occurred in the interchange which took place between the appellant and the victim.
The following exchange took place between the magistrate and Ms Turtley-Chappel:
HER HONOUR:   … So is your position now that you're prepared to simply have sentencing occur on the statement of material facts as read and based upon all of the matters that have been discussed where I have clearly indicated I can't make a finding?
TURTLEY-CHAPPEL, MS:   Yes.
HER HONOUR:   I'm not making a finding.
TURTLEY-CHAPPEL, MS: If you - yes. Absolutely, your Honour, I think that matters can proceed to sentence based on that - the assumption that or on your finding that you can't make a finding.
HER HONOUR:   I can't make a finding.
TURTLEY-CHAPPEL, MS:   Yes.
HER HONOUR:   How can I make a finding when everybody is drunk?
TURTLEY-CHAPPEL, MS:   Yes.
HER HONOUR:   Without having - and then you would have to call in extraneous evidence which would aggravate your client's position, but I don't see that it would take the matter any further in terms of what actually happened when the blow was thrown.
TURTLEY-CHAPPEL, MS:   I agree.
HER HONOUR:   Does that make sense?
TURTLEY-CHAPPEL, MS:   Yes.   I do.
There was then a discussion about adjourning the sentencing and this exchange took place:
HER HONOUR:   Well, I still think sentencing in this matter potentially is going to be quite lengthy unless you want me to just adopt the sentencing remarks that I made on 5 May.
TURTLEY-CHAPPEL, MS:   I leave that in your Honour's - - -
HER HONOUR:   If you are satisfied with that because on 5 May I canvassed and went through the factual circumstances. I think the issue though was that you had problems with me describing your client's behaviour as being aggressive, is that right?
TURTLEY-CHAPPEL, MS:   Your Honour, I can't recall exactly how your Honour prefaced it. I think the issue was that he was the sole aggressor in the circumstances, but perhaps it the transcript was ordered - I'm not sure if that would assist.
HER HONOUR:   Well, I think it's a case of res ipsa loquitur when your client has thrown a punch. I think the fact speaks for itself in terms of being aggressive, and I accepted that there was an interchange. There is no question there was an interchange. Something was said, because your client had walked off and then turned around and walked back. So they had crossed, going in opposite directions, so clearly there was something said, but the situation is, regardless of what was said, that doesn't excuse your client's behaviour.
TURTLEY-CHAPPEL, MS:   No, and he accepts that.
HER HONOUR:   All right. So, I mean - and quite clearly, provocation was never raised. It was never sought to go to a trial. It was an early plea of guilty.
TURTLEY-CHAPPEL, MS:   No.

22 June 2015

The first part of the transcript of this hearing is not available. Ms Turtley-Chappel did not appear on the appellant's behalf, he was represented by Ms K Beard. It appears from the transcript that Ms Beard began to address the magistrate in support of a submission that a spent conviction order be made. The magistrate stopped Ms Beard from proceeding further with her submissions and recounted the history of the matter to Ms Beard. Ms Beard said that she was in difficulty because she had assumed from the instructions she had received that the sentencing disposition had been decided. Ms Beard submitted that the magistrate needed to hear further from Ms Turtley‑Chappel (ts 19, 22 June 2015).
Ms Beard said, however, that she understood that everything that could be said on the appellant's behalf had been said.
By way of giving reasons as to why she was not prepared to adjourn the matter the magistrate outlined the history of the sentencing process in some detail. In the course of this outline, her Honour made the following remarks in relation to the history between the appellant and the victim:
- - - and my - as I said during my sentencing remarks and have re-stated, I can't make a finding directly on what happened on the information that was before me when I had started my sentencing, because Mr Myers was drunk, the victim was drunk, the young woman who seems to have been the source of the tension between these two men was drunk. So, I mean, how do you make a finding? What I told Ms Turtley‑Chappel was that there clearly was an exchange between these two men on the evening in question.
Whilst Ms Turtley-Chappel describes it as bad blood, I don't see it as bad blood - bad blood is overstating it - but there was tension between these two men that had existed maybe, I'm not sure of the exact timeframe, but four, six, eight weeks prior to this happening, in which, on her instructions, the victim had stared at Mr Myers at a party and made Mr Myers feel uncomfortable, and he left. And then there was an incident on Facebook where the victim called him a bitch.
So there was clearly tension. The source of that tension has never been completely clear, but it would appear from what has been put to the court that it, to some degree, involves this young woman. On the evening in question, Mr Myers is saying that the victim called him a bitch on three occasions. As - the victim says he doesn't recall saying that. The victim was drunk. And then the victim got punched in the face and went to the ground. So the fact that he doesn't recall it is not surprising.
But as I said to Ms Turtley-Chappel, the fact that they crossed each other when they were walking, and Mr Myers turned back, and when you look a what was said by the young woman, which is, 'Leave it alone Jordan, he's drunk,' then it's clear that there probably was something said and Mr Myers' recollection of him calling him a bitch is accurate. But how far does that take you in a sentencing exercise? That's why I was trying to be more balanced by saying I'm not going to make a finding - everybody's drunk. I mean, you know, there probably was something said because of the way Mr Myers has turned and come back and what's reported as her - the young woman saying, 'Leave it alone, he's a drunk.'
All of that suggests that there was something said. But as I indicated to Ms Turtley-Chappel, his response to that - what - there is a difference between something being provocative and provocation.
The magistrate then proceeded with sentencing. Her Honour referred to the fact that the young men who find themselves before the courts charged with offences of violence are often men with backgrounds similar to the appellant - that is, they have good antecedents, the support of their families and no criminal history. Her Honour then referred to the wide sentencing range for assaults causing bodily harm reflecting the wide variation in the seriousness of injuries that such assaults occasion. The magistrate cited passages from the judgment of Hall J in Shoard v Van der Zanden [2013] WASC 163 [30].
The magistrate referred to the appellant's supportive family background and to the appellant's participation in the victim mediation process. Her Honour observed that those factors had to be balanced against the offence and the injuries suffered by the victim and expressed her view that a fine did not adequately reflect the seriousness of the offence. Her Honour recorded that she considered that the significant injuries suffered by the victim meant that the offence was so serious that imprisonment was the only appropriate disposition.
The magistrate said that given the injuries suffered by the victim the starting point was a sentence of imprisonment of nine months. Allowing discounts for an early plea, the appellant's personal circumstances and very good antecedents, the sentence should be reduced to six months and one day. Her Honour said that she had no hesitation in suspending the sentence.
The magistrate concluded her remarks with a reference to personal and general deterrence and observed that personal deterrence was less relevant than general deterrence.

Principles relevant to a sentencing appeal

In Wilson v The State of Western Australia [2010] WASCA 82 [2] McLure P and Owen JA set out the relevant principles applicable to an appeal from the superior courts to the Court of Appeal pursuant to pt 3 of the Criminal Appeals Act 2004 (WA) 2004 in the following terms:
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].
These principles apply with equal force to appeals from the sentencing decisions of magistrates to a single judge of this Court pursuant to pt 2 of the Criminal Appeals Act 2004.
In considering an appeal on the ground that a sentence was manifestly excessive that court must have regard to the following:
(a)the maximum sentence prescribed by law for the offence;
(b)the standards of sentence customarily observed with respect to the particular offence;
(c)the place which the criminal conduct occupies on the scale of seriousness of that type; and,
(d)the personal circumstances of the offender: see Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

Ground 1

Although this ground asserts implied error on the part of the magistrate on the basis that the sentence was manifestly excessive, the submissions advanced in support of the ground allege a number of specific errors.
I begin by recording that the maximum penalty for an offence of assault occasioning bodily harm (when not committed in circumstances of aggravation) is a term of 5 years' imprisonment with a summary conviction penalty of a maximum term of imprisonment of 2 years and a fine of up to $24,000: s 317 of the Criminal Code (WA).
It is difficult to discern a range of sentences for offences of assaults causing bodily harm because of the great variation in circumstances in such cases, per Wheeler JA in Holden v The State of Western Australia [2009] WASCA 50, although her Honour noted that sentences of between 6 months' suspended imprisonment and 2 years' immediate imprisonment had been imposed in cases in which there had been a plea of guilty.

In Shoard v Van Der Zanden, Hall J referred to a number of appeals against sentences imposed in respect of assaults occasioning bodily harm. At [32] his Honour made the observation that the sentences for such an offence vary markedly because of the wide variety of circumstances in which the offence can be committed. His Honour went onto say that, '…if there is a range of sentences for this offence a sentence of 7 months does not obviously fall beyond it'. His Honour observed that what was probably more significant in terms of the exercise of the sentencing discretion than the existence of a range of sentences was the particular circumstances of the offence.
The appellant's principal submissions on the manifest excess ground were first, that the magistrate placed the offending behaviour too high on the scale of seriousness because she did not take into account that there was some provocation by the victim by words and actions, and secondly, that the magistrate did not take into account relevant matters, the remorse shown by the apologies made by the appellant immediately after the offence and the appellant's personal circumstances.
I am not satisfied that the magistrate made any error in her approach to the issue of whether the victim conducted himself in a way which contributed to the assault for the following nine reasons.
First, the magistrate accepted that the victim said something to the appellant of an insulting nature but was firmly of the view that this did not amount to a significant mitigatory factor.
In her exchange with Ms Beard immediately prior to sentencing at the hearing on 22 June 2015, her Honour said:
But as I said to Ms Turtley-Chappel, the fact that they crossed each other when they were walking, and Mr Myers turned back, and when you look at what was said by the young woman, which is 'leave it alone Jordan, he's drunk', then it's clear that there probably was something said and Mr Myers' recollection of him calling him a bitch is accurate. But how far does that take you in a sentencing exercise?
It is clear that notwithstanding her Honour's acceptance that the victim said something to the appellant, she held the view that the appellant's response to whatever was said by the victim was aggressive and disproportionate to whatever happened (ts 23, 15 May 2015). Ms Turtley-Chappel accepted that the appellant's response to whatever was said by the victim was aggressive and disproportionate.
The magistrate made an observation to a similar effect in her sentencing remarks on 4 May 2015 when she referred to the offending as a
… grotesque reaction to a perceived insult. It was a wanton vicious attack. The accused struck the blow, notwithstanding the victim's girlfriend placing herself in front of the accused in presence of police. The blow was struck to the victim's face.
I do not consider that there was any error on the part of the magistrate in the way she took into account the extent to which the victim provoked the appellant.
Second, Ms Turtley-Chappel did not press for a trial of issues. She accepted that the magistrate should proceed in the manner which her Honour had outlined in the exchanges which had taken place, namely, that something was said by the victim which contributed to the appellant's violent reaction but that given that all who might be able to give evidence about what was said were drunk, there was no possibility of making a positive finding about what was said. The appellant's counsel made a forensic decision not to pursue a trial of issues. In the light of that decision it cannot be said that the magistrate erred by not holding a trial of issues. I would add that in the light of the content of the statement of Police Constable Brigden, Ms Turtley-Chappel's decision not to seek a trial of issues may well have been a wise one.
Third, the magistrate accepted that the offence was not a random act of violence upon somebody that the appellant did not know (ts 21, 15 May 2015). The magistrate did not err in equating this case to those cases which have attracted attention in the media in which the assault was, 'unprovoked, unexpected and completely senseless' to use Mazza JA's words in Clarke v The State of Western Australia [2013] WASCA 197 [21].
Fourth, there was a change of position on the appellant's part as to precisely what conduct on the victim's part provoked the appellant into his violent reaction. In the written sentencing submissions made by Ms Turtley‑Chappel there was a reference to the victim stepping forward 'inciting to fight Mr Myers' [sic]. This submission was not repeated in the oral submissions made in mitigation but the magistrate referred to it.
When Ms Turtley‑Chappel interrupted the magistrate's sentencing remarks on 4 May 2015 in order to make submissions to the effect that the appellant was not the only aggressor and she said:
My concern is that Mr Myers' instructions are that the other person also threw a punch. It didn't connect with him….
This was the first (and only) occasion on which it was said that the victim threw a punch. When regard is had to what the magistrate had in fact said in her sentencing remarks up to the point at which she was interrupted and to the position subsequently adopted by Ms Turtley-Chappel, which was the magistrate could proceed to sentence on the basis that she could not make a finding as to what was said, there was no reason why her Honour should not have completed her remarks and sentenced the appellant on 4 May 2015.
At the hearing on 15 May 2015 Ms Turtley-Chappel did not maintain the claim that the victim had thrown a punch but put the appellant's position in the following terms:
The position of Mr Myers is that - that him and the complainant are both walking past each other. Words are exchanged. From Mr Myers' perspective, it's the complainant that initiates the words, and it is heated words. It is then - they both turn around.
They both approach each other, but Mr Myers accepts that he approaches faster and that, from his perspective, it is more of a fight about to happen. It's not a cheap shot. So he - from his position, he's saying it is both of them approaching each other, but he approaches faster, and - but he accepts that he did punch him.
On the hearing of the appeal it was contended that if the magistrate had proceeded with a trial of issues, the evidence of Ms Rachel Russell who witnessed the incident would have favoured the appellant's position, but Ms Russell's evidence was not entirely consistent with the position put to the magistrate by Ms Turtley-Chappel at the hearing on 15 May 2015. In her statement Ms Russell said, 'They crossed paths, and Jordan turned around and said, "what did you say cunt?" I didn't hear the other guy say anything. They both turned around and started to approach each other. Jordan seemed to be more aggressive than the other guy' (my emphasis). In my opinion, this evidence would not have led the magistrate to form the view that the offence was less serious than she evidently thought it was.
Fifth, even if the victim had 'shaped up' to the appellant and conducted himself in a manner which provoked the appellant, I do not consider that this is conduct which would have displaced the operative effect on the magistrate's approach to the exercise of her sentencing discretion of the appellant's aggressive and disproportionate violent reaction. Two things must be remembered: first, the appellant had attracted the attention of the police prior to the assault and been issued with a 'move-on' order; secondly, the appellant reached around the victim's girlfriend and punched the victim in the face in the presence of police officers.
Sixth, for the reasons to which I have referred above, because of the fact specific nature of such offences, the sentences imposed in other cases are of limited assistance in the exercise of the sentencing discretion. I observe, however, that in Clarke v The State of Western Australia the assault, constituted by a single punch which caused the victim to collapse and hit his head on the ground, was perpetrated on a victim following a verbal confrontation and in circumstances in which the court accepted that both the assailant and the victim were 'up for a fight'. On appeal the Court of Appeal substituted a term of imprisonment of 8 months suspended for 9 months for a term of immediate imprisonment of 9 months imposed by the primary sentencing judge.
Seventh, I do not accept the appellant's submission that the magistrate erred in her assessment of the seriousness of the offence by finding that the appellant punched the victim with such force that he fell to the ground and required medical attention. The fact that the victim fell to the ground upon being punched by the appellant was a material fact admitted by the appellant. Similarly, the appellant admitted that the victim required hospital treatment.
Eighth, the appellant's submission that the magistrate erred in failing to conclude that a fine would have been a sentence which would have satisfied the requirements of personal and general deterrence when regard was had to the appellant's youth, lack of a criminal record, participation in mediation, early plea of guilty and good prospects of rehabilitation, was essentially an invitation for me to substitute the exercise of my discretion for that of the magistrate even though there is no discernible error in the magistrate's approach.
Ninth, the appellant submits that the magistrate erred in concluding that the appellant referred to the victim as a 'fuckhead' in the Facebook exchanges between the appellant and the victim's girlfriend which followed the incident. This is a matter of little moment in the overall context of this appeal but I will deal with it. The relevant part of the message reads as follows: 'Brandon is a witness to that he reckons he was being a fuckedhead too when we walked past use'. The only sensible meaning that can be attributed to this remark is that the appellant, as well as Brandon, considered that the victim was 'being a fuckhead'. I do not consider that there was any error on the part of the magistrate in her assessment of this evidence.
For those reasons, ground 1 discloses no basis for appellate review of the exercise of the magistrate's sentencing discretion and I refuse leave to appeal in respect of it.

Ground 2

In my opinion, this ground has no reasonable prospect of success for the following reasons.
The plea in mitigation made by Ms Turtley-Chappel on the appellant's behalf was completed at the hearing on 4 May 2015. The hearings on 15 May and 8 June 2015 were concerned with resolving the issue, belatedly raised by Ms Turtley-Chappel in the course of the magistrate's sentencing remarks on 4 May, about the extent to which the victim was an aggressor by throwing a punch. The issue was resolved at the hearing on 15 May and remained resolved at the hearing on 8 June. In fact, the appellant would have been sentenced on 8 June had he appeared. The hearing on 8 June concluded on the basis that the appellant would be sentenced on 22 June. Ms Turtley-Chappel said nothing at the conclusion of the hearing on 8 June to the effect that she wanted to make further submissions in mitigation at the hearing on 22 June. When asked by the magistrate for a view on whether her Honour could simply adopt the sentencing remarks made at the earlier hearing, Ms Turtley-Chappel said that it was a matter for her Honour. There was absolutely no suggestion by Ms Turtley‑Chappel that there was anything else to be said in mitigation.
At the hearing on 22 June 2015, although Ms Beard did not appreciate all that had taken place at the previous hearing, she accepted that all that could be said had been said. Of course, this was consistent with her understanding that 'the sentencing disposition had been decided' which, in turn, suggests that there was no more to be said in mitigation.
Having regard to the way in which the sentencing process proceeded in this matter, I have no doubt that the appellant was afforded a fair hearing and there was no denial of natural justice. I would add that the appellant's submissions to this court did not identify what it is suggested that Ms Turtley‑Chappel might have added to the plea in mitigation had the hearing on 22 June 2015 been adjourned to allow Ms Turtley-Chappel to attend.
I refuse leave to appeal in respect of ground 2.
The application for leave to appeal is dismissed and I will hear the parties in relation to costs.