Nicholls v Branch
[2005] WASCA 51
•22 MARCH 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: NICHOLLS -v- BRANCH [2005] WASCA 51
CORAM: JOHNSON J
HEARD: 1 APRIL 2004
DELIVERED : 22 MARCH 2005
FILE NO/S: SJA 1003 of 2004
BETWEEN: SHANE WALTER NICHOLLS
Appellant
AND
RICK COREY BRANCH
Respondent
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether term of imprisonment was the only appropriate sentence - 6 months' imprisonment - First offence of violent behaviour
Legislation:
Justices Act 1902 (WA), s 199(1)
Sentencing Act 1995 (WA), s 6(4), s 76
Result:
Appeal allowed
Sentence of 6 months' imprisonment imposed by the Magistrate be suspended for 6 months
Category: C
Representation:
Counsel:
Appellant: Mr D P A Moen
Respondent: Mr R K Malhotra
Solicitors:
Appellant: David Manera
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Napper v Samuels (1972) 4 SASR 63
R v Ciccone (1974) 7 SASR 110
R v Gillan (1991) 54 A Crim R 475
R v Liddington (1997) 97 A Crim R 400
R v Nevermann (1989) 43 A Crim R 347
Rodriguez v The Queen [2001] WASCA 394
Case(s) also cited:
Duncan v The Queen (1983) 47 ALR 746
GP (1997) 18 WAR 196
H (1993) 66 A Crim R 505
James (1985) 14 A Crim R 364
Lintoff v The Queen [1998] WASCA 140
Osenkowski (1982) 5 A Crim R 394
Phelan (1993) 66 A Crim R 446
R v Grein [1989] WAR 178
R v Tait [1976] 46 FLR 386
Skinner v The King (1913) 16 CLR 336
Stafford (1997) 97 A Crim R 85
Warrell v Kay (1995) 83 A Crim R 493
JOHNSON J: On 10 November 2003 the appellant was convicted on his own plea of one count of assault occasioning bodily harm. He was sentenced to 6 months' imprisonment. The appellant appeals against the sentence on the following grounds:
"(i)Having come to the view that a sentence of imprisonment was the appropriate sentence, the learned Magistrate erred in law in not exercising his discretion pursuant to section 76(1) of the Sentencing Act 1995 to suspend the operation of that sentence.
Alternatively -
(ii)The learned Magistrate erred in law in concluding that a sentence of a term of imprisonment was the only appropriate sentencing disposition in all of the circumstances.
PARTICULARS OF ERROR OF LAW
The learned Magistrate failed to give any or any proper weight to the following facts:
(i)The Applicant had no history of violence.
(ii)The Applicant struck the child with one or two slaps in succession having lost the capacity for proper self‑control because of the effect of the child's crying upon him.
(iii)The Applicant's loss of self control was momentary.
(iv)The Applicant did not intend to strike the child hard so as to cause injury.
(v)The injury received by the child was bruising, with no significant effect on the child.
(vi)The Applicant is otherwise of good character."
The relevant facts can be briefly stated. The appellant had been in a de facto relationship for some six months with a woman who had a 10‑month‑old female baby. The couple and the child lived together in the appellant's mother's house. On 5 August 2003 the appellant's de facto left the baby in his care for approximately 15 minutes while she went to the nearby shops. The baby was lying in her cot in the appellant's room and was somewhat unsettled. The appellant became angry when he could not stop the baby from crying. He lost his temper and struck the baby twice across the left side of her face between the ear and the jaw. The blow was sufficiently severe to cause a red mark which later developed into significant bruising down the entire left side of the baby's face. The medical report provided to the Court describes the bruising as rounded in shape, seven centimetres x seven centimetres in size, and pink to light purple in colour. The report also notes that the ear was bruised on both surfaces. On the mother's return, the child was found sobbing.
When spoken to by police, the appellant admitted losing his temper and striking the child. He entered a plea of guilty at an early stage, although there was some delay in sentencing as a result of a dispute about the facts. That dispute was ultimately resolved without the need for a trial of the issues. At the time of sentencing the appellant was 33 years of age. Although the Court has not been provided with a copy of the appellant's criminal record, it was agreed between the parties that the appellant had no criminal record for offences of violence.
The transcript of the Magistrate's reasons for sentence is difficult to follow because the tape is frequently inaudible. However, it is sufficiently coherent to glean that the Magistrate noted the early plea of guilty and accepted it as an indication of remorse. He referred to the early dispute as to the facts and expressed the view that a blow to the head of a child was a serious assault irrespective of whether the child was hit with fingers or the palm of the hand. The Magistrate emphasised the fact that a child is not in a position to defend itself or to indicate that it has been abused other than by evidence of injury. It is this vulnerability that the Magistrate saw as being the basis of the need to emphasise deterrence in the sentencing process. The learned Magistrate did not consider the fact that the child was crying as being mitigatory and found the offence to be wholly without mitigation. Before imposing a sentence of imprisonment, the learned Magistrate gave consideration to other sentencing options such as a fine or an order involving supervision in the community.
In considering any appeal against sentence, the Court must be constantly mindful of the principle which precludes an appellate court from exercising its own sentencing discretion in lieu of that exercised by the lower Court. The classic statement of that principle can be found in House v The King (1936) 55 CLR 499 at 504 ‑ 505 (Judgment of the Court):
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
See also Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 672; Rodriguez v The Queen [2001] WASCA 394, per Steytler J, at [42]; Dinsdale v The Queen (2000) 202 CLR 321, per Gaudron and Gummow JJ, at 329.
Another principle relevant to the disposition of this appeal is that a full or detailed statement of reasons for sentence need not be given in every case. The reasons may be stated shortly, without being developed in any detail: R v Nevermann (1989) 43 A Crim R 347 at 350, per Malcolm CJ. Further, it is not necessary in each case to name all the possible alternatives to imprisonment and the reasons for rejecting them. It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reason for adoption of the sentence or other disposition he considers appropriate: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ, and R v Ciccone (1974) 7 SASR 110. In this case, the Magistrate has provided brief reasons which refer to the available sentencing options and identify the basis of the decision to impose a custodial term. No error is identifiable from the reasons given by the Magistrate. It is necessary then to determine whether, on the whole of the facts, the sentence imposed is unreasonable or plainly unjust: House v The King at 505.
In considering the merits of this appeal, it is convenient to first consider the alternate ground of appeal. It is said that the learned Magistrate erred in law in concluding that a sentence of imprisonment was the only appropriate sentencing disposition in all of the circumstances: see s 6(4) of the Sentencing Act 1995 (WA). In support of this ground, counsel for the appellant relies on factors personal to the accused and matters pertaining to the offence which are said to be mitigatory. Reliance is placed on the following factors:
(i)the appellant's age;
(ii)his early admission of the offence and his early plea of guilty;
(iii)his lack of any history of violence;
(iv)the fact that the appellant's loss of control was only momentary (this is the essence of the offence not a mitigating factor) and resulted from his inexperience with children; and
(v)the minimal risk of re‑offending.
At the time of sentencing, the appellant was 33 years old. He was certainly old enough to be expected to exercise control over his actions. I do not see age as a mitigating circumstance in this case. As to the second factor, I would have thought that the attempt to downplay the severity of the blow by describing it as a flick rather than a blow would call into question whether the appellant was truly remorseful. Nevertheless, the appellant's early plea was taken into account by the learned Magistrate and was taken to be evidence of remorse. It is the case that the appellant has no history of violence and that his loss of control was momentary. Unfortunately, in the case of an assault on a baby, a momentary loss of control is all that is required to cause considerable harm. It was submitted on behalf of the appellant that, apart from bruising, the child was not injured. On that basis, it is said that the Magistrate set the level of serious at too high a level. I cannot accept that submission. While it is fortunate indeed that the blow did not cause greater injury, in my view, a blow to a baby's head which causes a seven‑centimetre x seven‑centimetre bruise on both sides of the ear is a very serious assault.
The only factors which mitigate this offence are those which were known to the Magistrate and taken into account by him in passing sentence. The element of deterrence was considered by him to be of particular importance where offences are committed on vulnerable children who are unable to defend themselves or complain to authorities. I cannot but agree with that approach. It is vitally important that the Court sends a clear message to those who have children in their care to exercise control, whatever the circumstances. For these reasons I am unable to conclude that it has been demonstrated that the learned Magistrate fell into error in imposing a term of imprisonment.
The remaining issue is whether the term of imprisonment should have been suspended in accordance with s 76 of the Sentencing Act 1995 (WA). In R v Gillan (1991) 54 A Crim R 475 the Federal Court rejected the proposition that no punishment is imposed or deterrent effect created when a sentence is suspended. The Full Court made the following statement of principle (at 480):
"The element of general deterrence will, we think, be satisfied in this case by the sentence of imprisonment we consider ought to be imposed. In Elliot v Harris (No2) (1976) 13 SASR 516, Bray CJ pointed out (at 527) that it is quite wrong to regard a suspended sentence as really no punishment at all. As his Honour said, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves for a person's record and his future."
However, as Steytler J observed in R v Liddington (1997) 97 A Crim R 400 at 406, whilst the principal rationale underpinning the existence of the suspended sentence must be that of encouraging the rehabilitation of the offender, the prospect of rehabilitation is not the only relevant factor when considering whether or not to suspend a sentence of imprisonment. Nor should it necessarily be the determining factor. Factors such as the seriousness of the offence and the need to demonstrate the condemnation of the community for offences of this kind must also be taken into account.
In my view, the circumstances of this case are particularly serious. Despite the presence of others in the house at the time, rather than asking for assistance with the baby, the appellant resorted to an extreme act of violence against a vulnerable baby, causing injury. Some acts are so serious and have the potential for such harm that the deterrent component of the sentencing exercise becomes paramount.
I am not persuaded that the Magistrate made any error in any of the respects for which the appellant contends. In my opinion, the decision of the Magistrate to impose a term of imprisonment, and not to suspend the term of imprisonment, was within the range of appropriate sentencing outcomes for this offence, even after giving due allowance for the matters personal to the appellant. If that were an end to the matter, I would dismiss the appeal. However, through no fault of the appellant, the respondent or, in the strictest sense, even the Court, the resolution of this appeal has been significantly delayed. The appellant spent 72 days in custody before being released on bail pending appeal on 25 January 2004. The appeal was heard on 1 April 2004. The appellant has spent approximately 11 months awaiting a resolution of his appeal. By reason of his conditions of bail, he has during that time been unable to reside with his de facto partner. No doubt that factor as well as the prolonged period of uncertainty about his future liberty has had an adverse effect upon him and would necessarily have restricted his ability to plan his future. I have been provided with evidence on oath from the appellant that there have been no further acts of violence towards the child. Indeed there has been no contact between the appellant and the child as a result of his compliance with the bail condition imposed on his release from custody pending appeal. The respondent has also advised that the appellant has not come to the attention of the police or other authorities since the commission of this offence for any act of violence or, as far as I am aware, any other matter. There are many cases in which a delayed period between the hearing of an appeal and the delivery of judgment would have little or no impact on the outcome of the appeal. However, in all the circumstances of this case I believe the interests of justice are best served by making an order under s 199(1)(g) of the Justices Act 1902 (WA) allowing the appeal and substituting for the sentence imposed by the Magistrate, a sentence of 6 months' imprisonment, suspended pursuant to s 76 of the Sentencing Act 1995 (WA) for a period of 6 months.
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