Neil v Sowden

[2017] WASC 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NEIL -v- SOWDEN [2017] WASC 220

CORAM:   MCGRATH J

HEARD:   26 JULY 2017

DELIVERED          :   4 AUGUST 2017

FILE NO/S:   SJA 1039 of 2017

BETWEEN:   KRISTIE JEAN NEIL

Appellant

AND

BRETT SOWDEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R S HUSTON

File No  :KH 2879 of 2014

Catchwords:

Criminal law - Sentencing appeal - Unlawful wounding - Glassing - Section 301(1) of the Criminal Code (WA) - Manifestly excessive sentence - Whether the sentence should have been suspended - Implied error - Error of fact - Error of law - Leave to appeal granted - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 6, s 39, s 76

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondent:     Mr B M Murray

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

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

Chan v The Queen (1989) 38 A Crim R 337

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

Duggan v Coehlo [2009] WASC 372

Holden v The State of Western Australia [2011] WASCA 238

Janerka v Bethell [2002] WASCA 198

Johnson v Hayter [2001] WASCA 118

Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Nguyen v Lassau [2010] WASC 240

Plant v Harrington [2010] WASC 364

Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421

R v Whyte [2004] VSCA 5; (2004) 7 VR 397

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Scolaro v Shephard [No 2] [2010] WASC 271

Smith v The State of Western Australia [2010] WASCA 176

Walker v Allen [2006] WASC 89

MCGRATH J: 

Introduction

1. The appellant seeks leave to appeal against the sentence imposed by the magistrate in respect to one offence of unlawful wounding contrary to s 301(1) of the Criminal Code (WA). The appellant also seeks leave for an extension of time in which to appeal. The appellant's complaint is that the magistrate imposed an immediate term of imprisonment that was manifestly excessive both in respect to the length of that term and that the term should have been suspended. That is, the sentence of immediate imprisonment was unreasonable or plainly unjust. The appellant also relies upon three grounds pleading express error.

2. For the following reasons, whilst I have determined that an extension of time to appeal should be granted and leave to appeal should be granted in respect to all grounds, the appeal is dismissed.

Magistrates Court proceedings

1. By way of Prosecution Notice dated 19 November 2014, the appellant was charged with one count of unlawful wounding arising from an allegation that, on 15 November 2014, she struck the complainant in the face whilst holding a glass in her hand and thereby unlawfully wounded the complainant.  On 31 March 2015, the appellant entered a plea of guilty to the charge.  The magistrate made an order for written pre‑sentence and psychological reports.

2. The reports recorded that the appellant denied hitting the complainant with a glass and further, raised defences to the charge.  After hearing from the parties, the magistrate set the plea aside and the matter was listed for a hearing.

3. On 1 December 2015, the appellant appeared for the hearing to determine the charge.  The hearing adjourned part heard to subsequent hearing dates.  On 19 December 2016, the magistrate convicted the appellant and delivered his reasons for decision.  The sentencing was adjourned to 21 December 2016.  Subsequently, the sentencing was adjourned to 23 March 2017 to allow updated reports to be obtained.[1]  On 23 March 2016, the appellant was sentenced to 15 months' immediate imprisonment.

   [1] Pre-sentence report dated 20 March 2017; Psychological Report dated 19 March 2017.

4. The appellant made a number of admissions at the hearing.  The most significant admission being that she 'accepts the injury was as a result of an action of hers, namely, thrusting her arm forwards.  It is not conceded that she knew that at the time she had a glass in her hand.'[2]  The principal issue at the hearing was whether the appellant 'knew at the time that she struck out at [the complainant] that she had a glass in her hand at the time.'[3]  A further issue was whether there was any defence to the allegation.[4]

   [2] ts 8 (19/12/16).

   [3] ts 6 (21/12/15).

   [4] ts 8 (19/12/16).

5. The magistrate made a number of findings when convicting the appellant.  The appellant and the complainant were known to each other prior to the offending.  Their respective partners were 'best of friends for a very long time.'[5]  In contrast, the appellant and the complainant 'disliked and disapproved of the other with some intensity.'[6]  There had previously been an altercation between the two women about six months earlier.[7] 

   [5] ts 17 (19/12/16).

   [6] ts 17 (19/12/16).

   [7] ts 18 (19/12/16).

6. At around 11.30 pm on 15 November 2014, the appellant arrived at the Mermaid Hotel in Dampier and for the first 15 or 20 minutes it appears that neither the appellant nor the complainant was aware that the other was present.[8]  Given that the hotel was closing the patrons moved onto the balcony of the hotel. 

   [8] ts 21 (19/12/16).

7. The appellant approached the complainant and engaged in conversation asking the complainant about her holiday.[9]  The appellant did so, knowing that there was no cordial relationship between them.  The complainant responded by stating that they had enjoyed the holiday but that she did not intend to speak with her.[10]  The complainant therefore, did not engage the appellant and while her response was described by his Honour as 'clearly curt, and intentionally so' and 'lacked courtesy', the complainant did not use insults or profanities.[11]  In comparison, the appellant responded with profanities, accusations, and then she pushed the complainant with her right hand which struck the complainant on the throat and upper chest area.  At that point the complainant said the words 'piss off' and leaned in when those words were stated.[12]  The magistrate found that the leaning towards the appellant was not objectively threatening and further, was not considered to be so by the appellant.[13]  The complainant was clutching her bag in one hand and a stubbie in the other hand.[14]

   [9] ts 22 (19/12/16).

   [10] ts 22 (19/12/16).

   [11] ts 22 (19/12/16).

   [12] ts 23 - 24 (19/12/16).

   [13] ts 24 (19/12/16).

   [14] ts 24 (19/12/16).

8. The magistrate found that the appellant then 'raised her left hand, gripping the glass … and with a round arm, extended slightly downwards, swing, the accused struck the complainant with significant force to the right‑hand side of the complainant's face'.[15]  The magistrate found that harmful act was done in circumstances where the appellant had no belief that such an act was necessary for any defensive reason.[16]  Rather, the appellant became enraged by the complainant's rebuff and that she lost control of herself.

   [15] ts 24 - 25 (19/12/16).

   [16] ts 24 (19/12/16).

9. The magistrate found that the appellant knew that she was holding the glass and that it was an intentional assault to the face of the complainant.[17]  The magistrate stated that the appellant struck the complainant using her fully extended left arm in a forceful and vigorous way.  The reason for the assault was that the appellant had 'worked herself in to a rage'.[18]

   [17] ts 28 (19/12/16).

   [18] ts 34 (19/12/16).

10. The magistrate found that the glass striking the face of the complainant immediately opened up a deep laceration, approximately 6 ‑ 7 cm in length on the right hand side of the complainant's face.  The incident was observed by two police officers who were present on the balcony.  Consequently, photographs of the injuries of the complainant were taken a short time later by the officers.[19]

    [19] Exhibit 1.

11. His Honour expressly found that neither the appellant nor the complainant was intoxicated. 

Appeal

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[20]  An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[21]

   [20] Criminal Appeals Act 2004 (WA), s 9(1).

   [21] Criminal Appeals Act 2004 (WA), s 8.

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[22]  The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[23]

   [22] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).

   [23] Criminal Appeals Act 2004 (WA), s 14.

3. The notice of appeal raised one ground being:

   1.The learned sentencing Judge erred in imposing a sentence that was, having regard to all of the circumstances including those referrable to the offender personally, manifestly excessive as to both length and type.

4. The appellant made application to amend the notice of appeal to rely upon three further grounds being:

   2.The learned sentencing magistrate erred in fact and in law characterising the offending as at the upper end of the scale of seriousness for offences of wounding.

   3.The learned sentencing magistrate erred in fact in sentencing the appellant on the basis that the medical report before the court as an exhibit to the trial indicated that 200 sutures were required to repair the complainant's injuries.

   4.The learned sentencing magistrate erred in fact in sentencing the appellant on the basis that she was not remorseful.

5. I granted leave to the appellant to rely upon the further grounds 2 to 4.  I will first consider grounds 2 to 4 inclusive before turning to ground 1.

Ground 2

1. Ground 2 relies upon the contention of an express error being in that the magistrate characterised the offending as being at the upper end of the scale of seriousness for offences of wounding. The appellant relies upon the following observations of his Honour:[24]

   And in the circumstances of this offending, there's no other way of characterising a wounding, and particularly this wounding, where Ms Neil was, in effect, armed with a glass, as being a most serious offence. Wounding in itself, that is, an unlawful wounding, as this offence is, section 301(1) of the Criminal Code, sets out the offence of unlawful wounding. And it is in itself a serious offence.

   And the circumstances of the offending in respect of what happened on 15 November 2014, this was a serious case of unlawful wounding.  Clearly, an unlawful wounding can be on a scale, and this act of unlawful wounding was on the upper end of that scale, because-and not only because but because Ms Neil had a glass in her hand and knew that she had a glass in her hand and used that glass to strike [the complainant] to the face area.

   So in terms of the requirements of the Sentencing Act and the principles of sentencing, the sentence imposed must reflect how serious the offending was. And it is and was a serious unlawful wounding.

   [24] ts 4 - 5 (23/3/17 - Sentencing remarks).

2. It is clear that the magistrate did not make a finding that this offending was in the worst‑case category.  The respondent characterises these paragraphs as being consistent with the magistrate's observations at the end of the trial hearing being that unlawful wounding is one of the most serious offences that the Magistrates Court has jurisdiction for.[25] 

   [25] ts 5 (19/12/16).

3. I consider that the magistrate's characterisation of the offence is not a finding of fact but rather an evaluative judgment. That is, an evaluative judgment of the circumstances of the offending.  Accordingly, that evaluative judgment is more appropriately pleaded as a particular of ground 1.[26]  Necessarily, when considering a claim of manifest excess the circumstances and seriousness of the offending must be examined.

Ground 3

[26] Holden v The State of Western Australia [2011] WASCA 238 [10].

1. The appellant contends that the magistrate erred in fact by stating that the medical report recorded that the complainant received 200 sutures as a result of the unlawful wounding.  His Honour stated that:[27]

   The medical report that the court had as an exhibit to the trial indicated that 200 sutures - stiches were required to repair the physical extent of the injuries, at least.  And there was a second cut on the other side of the face - the other side of [the complainant's] mouth.

   [27] ts 5 (23/3/17 - Sentencing remarks).

2. The medical report makes no reference to the number of sutures to the wound required by the appellant.[28]  The medical report was tendered by consent[29] and therefore, the treating medical practitioner was not examined.

   [28] Exhibit 7.

   [29] ts 5 (21/12/15).

3. The magistrate appears to have formed the view that there were 200 sutures based upon other evidence.  There was evidence that 200 sutures were necessary to repair the wound in the statements of First Class Constable Wovodich[30] and the statement of Scott Bond.[31]  Both statements were tendered by consent.  First Class Constable Wovodich stated that the victim advised her that she had over 200 stiches to the wound to her face.[32]  That part of First Class Constable Wovodich's statement is hearsay but was received as evidence.  Mr Bond stated that 'the plastic surgeon dressed Nikki's wound and gave her over 200 stiches'.[33]  That evidence also appears to be hearsay but was received by the court. 

   [30] Exhibit 15 [40].

   [31] Exhibit 11 [39].

   [32] Exhibit 15 [40].

   [33] Exhibit 11 [39].

4. The magistrate, therefore, did not have any medical report or testimony from the medical practitioner that the victim received 200 stitches.  However, this is not a case where the sentencing magistrate failed to receive evidence concerning the nature and extent of the injury.  To the contrary, the magistrate also received in evidence four photographs of the victim's face that depicts the wound prior to the surgical treatment.[34]  Further, the nature and extent of the injury was outlined and accurately characterised in the medical report which described the injuries as being a 6 ‑ 7 cm laceration to the left cheek above the left mandible being 1 cm in depth with fat exposed and gaping and a 1 cm superficial laceration to the bottom lip.[35]

   [34] Exhibit 1.

   [35] Exhibit 7.

5. In his reasons for decision for convicting, his Honour referred to the photographs depicting the injuries to the face of the complainant and otherwise correctly recited the contents of the medical report.[36] 

   [36] ts 10 - 11 (19/12/16).

6. The medical report also comprised the progress note recorded on 24 December 2014 that records that the complainant had experienced deterioration in mood and functioning.[37]

   [37] Exhibit 7.

7. Accordingly, whilst the magistrate did incorrectly find that the medical report stated that 200 sutures were required, that finding was based upon the evidence of two witnesses (not medical practitioners) and in circumstances where his Honour had received photographic evidence depicting the extent of the injuries.  Whilst his Honour has made an error, I do not consider that there has been a miscarriage of justice.[38]  That is, for reasons that I will further outline when considering ground 1, I do not consider that a different sentence ought be imposed.

Ground 4

[38] Criminal Appeals Act 2004, s 8.

1. The appellant contends by ground 4 that the magistrate erred in fact by finding that the appellant was not remorseful.  The appellant refers to the following statement of his Honour:

   [I]n respect of this matter, my finding is that there has been an absence of genuine remorse, in terms of the extensive injuries sustained by the victim, [the complainant], and the trauma that she clearly endured and is enduring.  I accept there is regret for what happened, and shock by Ms Neil, even on the night, as to the outcome.  But I've observed little in the way of genuine and sincere remorse, in terms of concern for [the complainant].  I don't consider remorse and regret to be the same thing.  Regret, in my view, indicates an expression of disappointment and personal sorrow for the circumstances and the outcome.  Remorse, in my view, extends further and is a sense of deep regret accompanied by an element of guilt for a wrong committed.  And I have observed little in the sense of there being a genuine remorse in that sense.  There has certainly been regret the outcome and for what has followed.

2. The appellant does not contend that the magistrate regarded the absence of remorse as an aggravating factor.  Rather, the complaint is that his Honour erroneously determined the absence of remorse and therefore did not take it into account as a mitigating factor.  His Honour, in his sentencing remarks, referred to his previous stated concerns regarding the lack of remorse.[39]  That is a reference to his Honour's statements at the hearing of 21 December 2016.  His Honour expressed concerns regarding the 'continued absence of remorse' and referred to the continued denials of responsibility and blaming the victim 'with minimal regard for what happened to [the complainant].'[40]  The appellant's counsel made submissions during that hearing concerning the issue of remorse.[41]

   [39] ts 5 (23/3/17 - Sentencing remarks).

   [40] ts 124 (21/12/16).

   [41] ts 126 - 127 (21/12/16).

3. In the sentencing remarks his Honour outlined his concerns regarding the lack of remorse.  At the sentencing hearing, counsel for the appellant submitted that the appellant did not accept the decision of conviction but was remorseful.[42]  The appellant did not appear to accept, at the sentencing hearing, responsibility for her actions.  In particular, his Honour found that there was 'an ongoing denial of the facts of what happened that night.'[43]  The magistrate observed that despite the admissions, the appellant denied what had occurred at the hotel during the trial hearing.  His Honour delineated the relevant portion from the hearing transcript in his sentencing remarks.[44]  He did so without error.

   [42] ts 2 (23/3/17).

   [43] ts 6 (23/3/17 - Sentencing remarks).

   [44] ts 6 - 8 (23/3/17 - Sentencing remarks).

4. The author of the psychological report stated that Ms Neil denied committing the current offence.[45]  The author recorded that the appellant 'also stated that she did not hit the victim with the glass but that rather they most have 'come together accidentally' and that this resulted in the victim's injuries'.[46]  The author did, though, observe that the appellant 'expressed regret for any hurt or damage that was caused to her victim.'[47]  However, the appellant 'denied ever hitting or injuring the victim.'[48]  The appellant's position, whilst appearing contradictory, may be understood as denying all responsibility for her actions and hence causing any injury to the victim yet expressing regret for the victim's injuries, however they may have occurred.

   [45] Psychological Report dated 19 March 2017, p 7.

   [46] Psychological Report dated 19 March 2017, p 5 - 6.

   [47] Psychological Report dated 19 March 2017, p 6.

   [48] Psychological Report dated 19 March 2017, p 5.

5. In contrast, the author of the pre‑sentence report states that:

   During [the] interview, Mrs Neil demonstrated victim empathy and said she feels very regretful for her actions and the harm she caused towards the victim.  She said she had wanted to apologise for her actions but has been subject to a Violence Restraining Order that expired in January 2017.[49]

   [49] Pre-sentence Report dated 20 March 2017, p 2.

1. The statement of the appellant to the author of the pre‑sentence report must be considered in light of the entire circumstances.  The statements and conduct of the appellant over the proceedings provided an informative and comprehensive basis for the magistrate to determine whether genuine remorse exists.  The finding of remorse is a matter of judgment for his Honour and having heard the evidence and having observed the appellant, his Honour was very well placed to determine the presence or absence of remorse.  Such a finding is rarely interfered with by an appellate court[50] and given that the magistrate had a basis for finding that the appellant was not remorseful, I will not interfere with his Honour's finding.

   [50] R v Whyte [2004] VSCA 5; (2004) 7 VR 397.

2. This ground has not been made out.

Ground 1

1. The ground contends that the sentence imposed in respect to the offence was manifestly excessive.  The ground therefore asserts implied error.  That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion.  It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[51] 

   [51] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

2. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long.  To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[52]

   [52] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

3. In respect to the failure to suspend the term of imprisonment, I must be satisfied that it was not open for the magistrate in the exercise of his discretion to come to a conclusion that a suspended sentence was inappropriate. 

4. Section 6(1) of the Sentencing Act1995 (WA) requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including any aggravating factors, any mitigating factors and the vulnerability of any victim of the offence.

5. Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. 

6. The relevant principles with respect to the imposition of a suspended imprisonment are uncontroversial.[53] The sentencing options available to his Honour are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.

   [53] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

7. Pursuant to s 76(2) of the Sentencing Act, suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.

8. The same considerations relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[54]  That is, all circumstances must be revisited.  The sentencing magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.  The appellant must on this appeal satisfy the court that it was not open for the sentencing magistrate in the exercise of his discretion to find that a suspended sentence was inappropriate.

   [54] Dinsdale v The Queen [18], [26], [84], [85].

9. In considering this ground of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as consonant with consistency of approach and accords with the statutory regime.[55]

   [55] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

10. The maximum penalty for the offence of unlawful wounding is 5 years' imprisonment and 2 years' imprisonment when the offender is dealt with summarily.  Whilst the maximum sentence that the magistrate could impose was one of 2 years' imprisonment, it is relevant to have regard to the statutory maximum and not merely the jurisdictional limit in assessing the seriousness of the offence.[56]

    [56] Johnson v Hayter [2001] WASCA 118.

11. The appellant, who was 36 years of age at sentencing, presented with good antecedents.  The appellant is a mother to two children aged 5 and 7 years.[57]  As an adult her only previous offending was traffic offences.  His Honour expressly considered the antecedents of the appellant and did so without error.[58] His Honour noted that the appellant did not have as a mitigating factor an early plea of guilty and therefore, the discount on sentence under s 9AA of the Sentencing Act was not available.[59]  Further, the magistrate found that the appellant was not remorseful. 

    [57] Pre-sentence report dated 20 March 2017, p 2.

    [58] ts 3, 13 (23/3/17 - Sentencing remarks).

    [59] ts 3 (23/3/17 - Sentencing remarks).

12. His Honour outlined the circumstances of the offending and made appropriate findings.  His Honour described the offending as serious[60] and on the upper end of the scale for unlawful wounding because the appellant had a glass in her hand and knew that she had a glass in her hand when striking the complainant.[61]  The appellant does not impeach the findings that the appellant struck the complainant in the face knowing that she held the glass.  Rather, the ultimate evaluative judgment is disputed. 

    [60] ts 4 (23/3/17 - Sentencing remarks).

    [61] ts 5 (23/3/17 - Sentencing remarks).

13. I consider that the magistrate was correct in characterising 'glassing' unlawful wounding cases as being of the most serious cases that are dealt with in the Magistrates' Court.  His Honour referred to the observations of the Chief Justice in Scolaro v Shephard[62] that having regard to the prevalence and inherently dangerous nature of offending committed by the use of a glass or bottle which results in a serious offence of unlawful wounding.[63]  His Honour then referred to the observations of the Court of Appeal in Powell v Tickner.[64]  His Honour distilled the applicable principles without error and in particular, referred to the importance of general deterrence in respect to this type of offending.  I do not consider that his Honour erroneously characterised this particular offence as being in the most serious category possible for unlawful wounding.

    [62] Scolaro v Shephard [No 2] [2010] WASC 271.

    [63] ts 9 (23/3/17 - Sentencing remarks).

    [64] Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421.

14. The appellant contends that the magistrate in characterising the offending as serious, erroneously considered the potential injury or risk that may flow from the act of 'glassing'.[65]  I do not consider that his Honour erred.  The magistrate was entitled to consider the inherent seriousness of the act of 'glassing'.  It is uncontroversial that both the actual and potential consequences of offending conduct are relevant to sentencing.[66]  The consequences of 'glassing' a person may result in serious injuries to the facial area including the eyes.  That forms part of the seriousness of the use of glass and is relevant in characterising the seriousness of the appellant's offending.[67]  His Honour expressly recognised that in this case, though there was the likelihood of permanent injury or worse, fortunately the consequence was a physical recovery with visible scarring.[68]  His Honour did not err in so finding.

    [65] ts 6 (23/3/17 - Sentencing remarks).

    [66] Smith v The State of Western Australia [2010] WASCA 176 [78].

    [67] Powell v Tickner [119].

    [68] ts 6 (23/3/17 - Sentencing remarks).

15. The appellant also contends that there was provocation by the complainant.[69]  The unimpeached finding of the magistrate was to the contrary.[70]  The appellant approached the complainant and engaged in conversation.  I have outlined above the manner in which the appellant assaulted the complainant and used profanities prior to the harmful act occurring.  As I have stated, the magistrate found that the appellant struck the complainant with significant force to the right‑hand side of the complainant's face.[71]  The reason for that assault was that the appellant became enraged by the complainant's rebuff and that she lost control of herself.

    [69] Appellant's submissions [37].

    [70] ts 22 (19/12/16).

    [71] ts 24 - 25 (19/12/16).

16. There was no provocation by the complainant.  The complainant was curt towards the appellant.  Properly characterised, the appellant's conduct may be described as grossly disproportionate in the circumstances.

17. The use of a glass to inflict bodily injury is not a discrete offence.  In Powell v Tickner Buss JA undertook a survey of sentences imposed in this state for injuries sustained as a result of 'glassing' injuries.[72]  In Scolaro v Shephard, his Honour the Chief Justice reviewed sentences imposed for 'glassing' cases.  I have reviewed the cases cited in both Powell v Tickner and Scolaro v Shephard.

    [72] Powell v Tickner [57] ‑ [80].

18. When considering sentences imposed for 'glassing' injuries it is necessary to ensure that the distinction is identified between those acts that caused grievous bodily harm as against bodily injury.  Further, it is appropriate to take cogniscance of the penalties imposed for unlawful wounding cases that did not involve 'glassing' injuries.  I have done so in my review of the relevant cases.

19. I have reviewed the cases identified by the appellant relating to 'glassing' injuries being: Janerka v Bethnell[73], Long v Mayger[74], Walker v Allen[75], Duggan v Coehlo[76], Plant v Harrington[77], Nguyen v Lassau[78], Powell v Tickner, and Scolaro v Shephard.

    [73] Janerka v Bethell [2002] WASCA 198.

    [74] Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289.

    [75] Walker v Allen [2006] WASC 89.

    [76] Duggan v Coehlo [2009] WASC 372.

    [77] Plant v Harrington [2010] WASC 364.

    [78] Nguyen v Lassau [2010] WASC 240.

20. Given that an unlawful wounding can occur in a wide variety of circumstances it is not possible to discern a range within which sentences usually fall such that a sentence outside that range would be indicative of error.  To the extent that it is possible to discern a range of sentences for the 'glassing' wounding cases, a sentence of 15 months' imprisonment would not appear to be outside that range.  The sentence imposed on the appellant was within the discretion of the sentencing magistrate. 

21. Despite the sound antecedents, the appellant did not have the benefit of any discount afforded for an early plea of guilty nor did she present with remorse.  The appellant did commit a serious act of unlawful wounding by 'glassing' the complainant to the face with considerable force when in a rage against the complainant. 

22. The injury was significant.  That was evidenced by the medical report and the photographs.  The erroneous finding of the magistrate concerning 200 sutures does not impeach the objective seriousness of the wound inflicted and the characterisation of the wound as such by his Honour.  Accordingly, a different sentence ought not be imposed.  There is no miscarriage of justice.

23. The length of the term of imprisonment was within the discretion of his Honour.  The determination not to suspend was also appropriate and a sound exercise of the judicial discretion.  The appellant has failed to demonstrate that the sentence imposed upon her was unreasonable or plainly unjust.

Conclusion

1. Accordingly, whilst an extension of time in which to appeal is granted and leave to appeal is granted in respect to all grounds, the appeal is dismissed.