Olk v The State of Western Australia
[2021] WASCA 100
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OLK -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 100
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 4 MAY 2021
DELIVERED : 3 JUNE 2021
FILE NO/S: CACR 146 of 2020
BETWEEN: OLK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 148 of 2020
BETWEEN: OLK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : IND XX of XXXX
Catchwords:
Criminal law - Appeal against conviction - Aggravated assault causing bodily harm contrary to s 317(1)(a) of the Criminal Code (WA) - Application to adduce additional evidence - Whether conviction was unreasonable or cannot be supported having regard to the evidence - Whether there was a miscarriage of justice - Turns on own facts
Criminal law - Appeal against sentence - Sentence of 9 months' imprisonment conditionally suspended for 12 months - Whether sentence was manifestly excessive as to type - Turns on own facts
Legislation:
Criminal Code (WA), s 317(1)(a)
Sentencing Act 1995 (WA), s 84(1), s 84A
Result:
Application to adduce additional evidence dismissed
Leave to appeal against conviction refused
Leave to appeal against sentence refused
Appeals dismissed
Category: B
Representation:
CACR 146 of 2020
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 148 of 2020
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Clarke v The State of Western Australia [2018] WASCA 14
HNA v The State of Western Australia [2016] WASCA 165
Huggins v The State of Western Australia [2018] WASCA 61
Kabambi v The State of Western Australia [2019] WASCA 44
LTC v The State of Western Australia [2021] WASCA 60
MEN v The State of Western Australia [2020] WASCA 118
Pezzano v The State of Western Australia [2020] WASCA 181
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
JUDGMENT OF THE COURT:
Overview
On 24 September 2020, following a three-day trial before MacLean DCJ and a jury in the District Court of Western Australia at Kalgoorlie, the appellant was convicted on a charge of aggravated assault causing bodily harm contrary to s 317(1)(a) of the Criminal Code (WA).
The charge was that, on 2 November 2019 at a regional location, the appellant assaulted her 20-month-old granddaughter, SY, by striking her. SY sustained relatively minor injuries consisting of a swollen lip and bleeding around her nose and mouth. The appellant was sentenced to a term of 9 months' imprisonment which was conditionally suspended for 12 months.
The appellant, who is a self-represented litigant, has made applications for leave to appeal in relation to both conviction and sentence.
The court listed the applications for leave to appeal for hearing. For the reasons that follow the applications for leave should be dismissed. So too the appeals should be dismissed.
The prosecution case
The prosecution's case was that on 2 November 2019 at about 11.30 am a number of family members were sitting down in a home to have an early lunch. Those present included MA (then aged 18) who was the mother of SY, MA's sisters KC (then aged 15) and RF (then aged 19) and MA's cousin[1] SD (then aged 25). Also present were the four women's young children including SY. At around this time RF's partner, YK, attended the house. YK is a son of the appellant. YK became angry and agitated and caused a disturbance.
[1] Although on occasions SD was also referred to as a sister. See eg ts 48, 69 - 70, 72, 75, 93.
MA left the house with SY to avoid the disturbance. They drove around the block in a car, returning shortly afterwards. By the time MA and SY returned, police had arrived at the scene (outside the house) as YK had not calmed down. MA got out of the car with SY, SY being in MA's arms and on her hip. MA and SY stood with their backs to a fence. YK was a bit further down the street. The appellant then arrived.
The appellant is the paternal grandmother of SY (SY's father - MA's partner - being a different son of the appellant, ie he was not the son of the appellant causing the disturbance). The appellant came up to MA and yelled at her. On the State's case, the appellant then punched at MA, connecting with one or more blows. However, one of the appellant's blows made contact with SY's face. It caused SY's mouth and nose to bleed and SY's lip to swell up. SY did not suffer any permanent injuries and made a full recovery.
The defence case
In opening, defence counsel accepted that the jury would not have too much difficulty in finding that at some point SY suffered a bodily injury. Defence counsel said that the question for the jury was really one of identity. The appellant's case was that she was not responsible for any injuries that SY received as a result of any assault committed by her. The appellant's case was that she did not throw a punch or a hit or a slap - she did not strike or hit her granddaughter SY whether deliberately or by accident. Accordingly, as defence counsel confirmed in discussion with the trial judge in the absence of the jury, neither self-defence nor accident arose: the defence was that the appellant did not strike or try to strike MA and that the appellant did not strike or try to strike SY.[2]
[2] ts 116 - 117 (24/09/2020).
In closing, defence counsel submitted that the appellant was unshaken and unfaltering in her denials. That was also the case in cross‑examination. Defence counsel pointed out that MA did not see the appellant hit SY even though, at the time, MA was holding her baby. Defence counsel contended that the jury might think that, if a punch was thrown at her baby, MA would have known about it. Defence counsel pointed out that, as with MA, one of the police officer witnesses (Senior Constable Bird), who gave evidence that she saw the appellant 'windmill punching' in the direction of MA and SY, also said that she did not see the punches connect with anybody. Defence counsel suggested that there were inconsistencies in the evidence of SD. Moreover, there was a lot going on in a huge melee. Other people simply said that they did not see the appellant making any punches towards MA and SY. So far as there was one witness - KC - who was adamant that she saw the appellant hit at MA and hit SY, no other witness had given evidence to the same effect.
Defence counsel contended that, in all the circumstances, the charge had not been proved beyond reasonable doubt.
The evidence at trial
The prosecution case
The State called MA, SD, KC, RF and a number of police witnesses. The State also relied on photographs of SY's injuries (Exhibits 1 and 5), a map of the general area on which some witnesses marked some points (Exhibit 2) as well as photographs of the location (Exhibit 6) and mobile phone footage in relation to the general incident (Exhibit 3). In addition the State tendered an edited electronic record of interview of the appellant (Exhibit 4).
The photographs show SY with a bloody nose and a slightly swollen lip. There are also very minor abrasions on SY's chin. The blood presents as being fresh. As a matter of first impression it also appears from one of the photographs that SY has a small cut under her left eye. It was, however, the evidence of the investigating officer - Detective Senior Constable Fewster - that when SY was cleaned up there was no laceration. There was simply some blood that looked like a cut (ts 38 - 39 (23/09/20)).
The mobile phone footage was of surrounding events rather than the actual confrontation involving the appellant and MA. The scene presents as a chaotic series of different confrontations between a number of participants with various police officers attempting to restore order. At one point, about 1.18 minutes into the video, a female voice can be heard to scream: 'Oh my god what happened to [SY]'. MA can then be seen to approach some of the police officers holding SY on her hip.
MA's evidence
It is only necessary to recount MA's evidence about the confrontation between her and the appellant. Otherwise MA gave evidence that was generally consistent with the prosecution's case as set out at [5] - [7] above. Importantly, however, MA gave evidence that SY had no injuries before the confrontation between MA and the appellant (ts 47).
Immediately before the confrontation MA was standing with KC and SD in front of a fence outside the house. MA was holding SY on her hip. The appellant pulled up in a car. The appellant approached MA and said 'what did you do to my son?' MA said that the appellant then 'chucked a punch' that hit MA in the face. The appellant then tried to hit MA again, but the punch missed. MA walked into the house. It was there that MA saw blood coming from SY's mouth. MA's evidence was that she did not realise at the time of the confrontation between her and the appellant that the punch that missed her, MA, had 'got my daughter' (ts 48 - 49).
After becoming aware that SY was injured, MA reported to police officers that the appellant had hit SY. MA identified the appellant as the assailant as the appellant was the only person that had attacked MA (ts 50 - 51).
In re-examination MA said that only the appellant had punched SY - she, MA, did not see anybody else throwing punches at her baby. MA also described how KC was holding a baby that the appellant and another woman were trying to grab (the baby being the appellant's grandson by RF). MA mentioned the appellant having got into a fight with SD - SD having tried to protect MA and KC - and the appellant's daughter having also come into that fight (ts 63 - 64).
MA identified photographs of herself and SY and described SY's mouth as being 'busted' (ts 50; Exhibit 1).
The essential parts of MA's evidence were repeated in cross-examination (ts 53 - 56, 58 - 60). MA rejected defence counsel's suggestion that she had simply made up a story that the appellant hit her baby (ts 56, 60). MA also rejected a suggestion that KC had accidentally hit SY some days earlier during a fight between MA and her sister KC (ts 56 - 57).
SD's evidence
SD said that SY was not injured before the incident on 2 November 2019 (ts 67). She referred to the events concerning the family gathering and the disturbance involving the appellant's son (ts 66 - 68). In terms of the confrontation between MA and the appellant, SD referred to the appellant pulling up in a car, jumping out and rushing and hitting MA (ts 68 - 69). At the time SY was on MA's hip (ts 69). Afterwards SD saw SY crying with blood 'all over her mouth' and on her shirt (ts 69 -70).
In cross-examination, SD confirmed that she and the appellant got in a fight - she stood in between MA and the appellant. The two of them - SD and the appellant - got in a scuffle on the ground. This was after the appellant hit or tried to hit MA (ts 70 - 71). SD rejected the suggestion that the appellant did not hit MA or SY (ts 73, 76), that she was lying (ts 76) and otherwise maintained her evidence as to the confrontation (ts 73 - 76).
KC's evidence
KC confirmed that, while the fighting was going on outside the house, she was standing with MA and that each of them had a baby on their hip - MA holding SY (ts 90 - 91). Having confirmed that she saw the appellant, KC then gave this evidence:
Where did you see [the appellant]?---I seen her - first she got out of the car and then she walked straight up to [MA]. That's where I seen her.
All right. And when she walked up to [MA] what did you see?---See her threw a hit and then swung at [MA], missed [MA] and hit [SY].
All right. And what did [SY] do?---[SY] was screaming.
Yes, and did you see her face straight after that?---Yes, I seen blood on her face and I was trying to tell everyone that she had blood on her face but no one would listen to me.[3]
[3] ts 91.
In cross-examination, KC referred to the further fight between the appellant and SD (ts 93, 96 - 99) and otherwise confirmed - in emphatic terms - that she had 'with my own eyes' seen the appellant hit SY when the appellant had gone to hit MA - the blow swinging back around and hitting SY (ts 93; see also ts 97). KC also rejected the suggestion that she was involved in a fight with MA, and accidentally hit SY, about a week before (ts 94 - 95).
RF's evidence
RF gave evidence about the disturbance concerning her partner YK (the appellant's son) and having telephoned the appellant to inform her of the incident (ts 24 - 28 (23/09/20)). RF was standing away from MA and KC when YK's family arrived; however, RF was able to see people fighting over her baby (who was being held by KC). At that time RF ran over and saw MA and KC (ts 28 - 29 (23/09/20)). SY had blood on her face (ts 29 (23/09/20)). Otherwise RF confirmed that, before the incident, SY did not have any facial injuries (ts 25 (23/09/20)).
The police officers' evidence
A number of police witnesses were called to give oral evidence: Senior Constable Hayley Bird; Senior Constable Zane Arslanoski; Police Constable Carly Dennis-Watson; First Class Constable Mark Foley; and Detective Senior Constable Michael Fewster. A statement from Senior Constable Julian Tricker was read in by consent.
The police officers' evidence may be dealt with relatively briefly. Senior Constable Bird saw the appellant approach MA, KC and the babies they were holding. Neither child had any facial injury when first observed. She described the appellant directing 'a windmill rain of sort of punches, like multiple punches, at the two women'. While other things were going on - mention being made of the fight involving the appellant and SD - Senior Constable Bird told the two women (ie MA and KC) to get in the house. She did so without looking at the children. Afterwards Senior Constable Bird identified the injuries to SY (ts 78 - 81). While Senior Constable Bird saw the appellant throwing punches at MA, she, Senior Constable Bird, did not see any punches connect with SY (ts 88 - 89).
First Class Constable Foley also attended the incident. He saw both the appellant and MA. MA was holding a 'small child'. First Class Constable Foley did not see any apparent injury or blood to the face of the child when he first observed the child. He saw the confrontation between the appellant and MA describing it as a fight (ts 104).
First Class Constable Foley then gave this evidence:
What did you see?---I saw - there was a female with a - young female with a baby in her right arm, they were up against a fence near - I believe it's [relevant address stated], and I saw the accused walk towards her. From there I saw numerous swings, sort of like flailing - windmill action, which then - that's when I've gone to intervene.
So when you say flailing, who was doing that?---The accused …[4]
[4] ts 104 - 105.
The police officer then described the scuffle between the accused, SD and another woman. That became the focus of his attention rather than the earlier confrontation between MA and the appellant. First Class Constable Foley did not sight the baby until events calmed down, describing the baby (ie SY) as then having a red face (ts 105 - 106).
In cross-examination First Class Constable Foley stated that he could not say whether the appellant hit the child. He said only that the appellant was 'swinging at the lady with a child' (ts 106).
Senior Constable Arslanoski, who attended the incident, referred to the incident as a whole being a fairly disordered situation (ts 99) with a number of spot fights (ts 101). He was the arresting officer but did not see the confrontation between MA and the appellant. The most Senior Constable Arslanoski could say was that after the event SY was in distress and he saw blood coming from her nose (ts 100). Police Constable Dennis-Watson also confirmed that there were a number of fights. She separated the appellant from a group of women holding their babies. Police Constable Dennis-Watson confirmed that one baby had blood on her face but she did not see any impact that caused the injuries (ts 102 - 103).
Senior Constable Tricker, whose evidence was read in, referred to the arrest, observing a young child bleeding from the mouth and having taken digital images of the injuries (ts 108 - 109).
Detective Senior Constable Fewster was the investigating officer. While he attended the incident, Detective Senior Constable Fewster only became aware of SY's injuries after the event (ts 33 - 34 (23/09/20)). He confirmed the mobile phone footage (ts 34 - 37 (23/09/20)) and the electronic record of interview as conducted with the appellant together with the photographs of the facial injuries (ts 37 - 40 (23/09/20)). In the interview the appellant identified SY as her granddaughter but made no comment as to the incident and whether she, the appellant, had accidentally hit her granddaughter.
The defence case
The appellant gave evidence but called no other witnesses.
The appellant admitted asking MA where her son was but said that she, the appellant, did not raise her voice. At the time SY was with MA. The appellant said that she then got into a scuffle with SD. They, ie the appellant and SD, were on the ground. After that the appellant's daughter and SD also got into a fight (ts 46 - 47 (23/09/20)). The appellant denied fighting or striking anyone else (ts 48 (23/09/20)). Later on in her evidence-in-chief the appellant denied throwing punches towards anybody that day at all. When reminded of the police officers' evidence of windmill punches the appellant said that she might have been defending herself from SD. However, as far as the appellant was aware, she did not hit anybody else. She did not hit MA. Nor did she try to. The appellant also said that she did not hit SY even by accident (ts 52 (23/09/20)).
The appellant maintained her evidence in cross-examination (ts 54 - 55, 57 (23/09/20)). Any windmill punching was only 'in defending myself' (ts 53 (23/09/20)). However, the appellant accepted that SY was not injured when she, the appellant, approached MA and SY (ts 56 (23/09/20)).
The conviction and the restraining order
The jury retired at 12.09 pm on 24 September 2020 to consider its verdict. The jury returned at 1.00 pm to deliver its verdict. The appellant was found guilty by a unanimous verdict. The trial judge entered a judgment of conviction. It will be necessary to deal with the sentence passed by the trial judge in the context of the sentence appeal. For now, however, for the purpose of the conviction appeal we note that the trial judge made a family violence restraining order for a period of 2 years. Among other things, the FVRO prohibited the appellant from having any contact with SY.
Grounds of appeal: conviction appeal
The appellant's appeal notice specified that the draft ground of appeal was that the appellant 'was wrongly convicted'. The appellant failed to file an appellant's case by the time required by the rules. On 19 January 2021 Mazza JA extended the time for the appellant to file and serve an appellant's case to 2 March 2021. The appellant again failed to file an appellant's case and instead sought a six-month extension of time. On 10 March 2021 Buss P ordered that the appellant file and serve her appellant's case by 12 April 2021.
On 31 March 2021 the appellant lodged three documents:
1.An 8-page document headed 'Application in an appeal' which said that the appellant applied for 'conviction'. The document attached a six-page table in which the appellant catalogued various 'grounds' and her 'submissions' in relation to those grounds. The table addressed:
(a)The evidence of various witnesses. Three main points emerge. First, as to MA, the appellant suggested that MA's evidence was 'made up' and that MA fell over with SY and had 'tampered' with the blood evidence. Second, as to KC, the appellant said that she 'can't see how [KC] has identified me when I was pulled to the ground … and then I was in police hands'. Third, as to MA and other witnesses, the appellant questioned why there was no allegation of assault at the time SY was allegedly hit.
(b)The absence of any forensic evidence or medical reports as to the injuries.
(c)The conduct of her defence counsel and the prosecutor.
(d)The appellant's acquittal on a charge in the Magistrates Court of having assaulted MA (referred to as proceedings 'KA/4162/2019').
(e)The limited time the jury took in its deliberations (said to be only 10 - 15 minutes).
(f)Occasions post-conviction where MA had sought to deliver SY to a place where the appellant was present in apparent contravention of the restraining order.
2.A 1-page document headed 'Application in an appeal' which stated that the appellant applied to 'adduce documents'.
3.A 15-page affidavit with the stated purpose of being sworn to support the adducing of additional evidence on appeal. The affidavit referred to a 'mud map' (page 3) and a USB (said to contain materials of 'key witnesses' five days after the conviction in which such witnesses allegedly attacked family members of the appellant).
The affidavit has a section headed 'Grounds of Appeal' (page 4) in which the appellant states:
The grounds I want to be heard is that there were no medical dna forensic evidence or cross-examined by both lawyer/prosecutor on injuries.
No property evidence said in case.
There was an acquitted case of assault in magistrate court also linked to the case.
No cross examin [sic] in video evidence by lawyer/prosecutor.
The verdict was 15 - 20 minutes of decision.
Prosecutor used material facts of another case against me.
No mud map was shown by lawyer.
Restraining order broken 3 times due to know order was in place.
The affidavit also refers to 'order' wanted (page 5) and the 'reasons' for the appeal (pages 6 - 15). The latter effectively comprises of submissions in support of the appeal. The appellant refers to:
1.Whether, having regard to the video evidence, MA's evidence was truthful - the appellant's assertion being that while in the house MA concocted a plan to blame the appellant for SY's injuries to save 'herself getting locked up' because 'she does have hate for me' (pages 13 - 14).
2.The absence of any forensic evidence (pages 7, 9).
3.Other witnesses not corroborating MA's evidence (page 7).
4.What can be seen in the video evidence (pages 13 - 14).
5.One of the prosecution's witnesses having assaulted MA three or four days before the incident (page 11).
6.The prosecutor referring to the material facts of a disorderly conduct offence of which the appellant was convicted (page 11). (This should be put aside at once. The prosecutor only made reference to this in sentencing submissions to answer a submission that the appellant had not engaged in any violent conduct in recent years.[5] It is of no relevance to the conviction appeal. This is apparently the provenance of the statement in [40] above that the '[p]rosecutor used material facts of another case against me'. That too can be put aside.)
7.The absence of any examination by the prosecutor or defence counsel as to SY's injuries or the photographic evidence (page 7).
8.Her defence counsel not mentioning anything about the appellant wearing a finger ring or her clothing (page 9).
9.Her belief that defence counsel failed in his duty of care to the appellant by not cross-examining prosecution witnesses, not calling witnesses or seeking to have the charge heard in the Magistrates Court (page 12).
10.The jury only taking 10 - 20 minutes to deliver its verdict (page 11).
11.Her acquittal on 25 January 2021 in the Magistrates Court at Kalgoorlie on a related charge of having assaulted MA - the prosecution witnesses having failed to attend the court (page 15).
12.MA and her mother leaving SY with or in the vicinity of the appellant in apparent contravention of the restraining order on three occasions post-conviction - 23 November 2020, 25 December 2020 and 15 January 2021 (pages 8 and 10).
[5] ts 149 - 150.
The documents as lodged on 31 March 2021 represented a genuine attempt by the appellant to comply with the requirement to file an appellant's case in circumstances where the appellant was self-represented. As is set out below, it is possible to identify the essential grounds on which the appellant relies in seeking to challenge her conviction. In the absence of legal representation it was unlikely that any better statement of the appellant's case on appeal would be forthcoming. On 7 April 2021 Buss P ordered that:
1.The application entitled 'conviction' lodged by the appellant on 31 March 2021 is accepted for filing and will stand as the appellant's case.
2.The application entitled 'Adduce documents' lodged by the appellant on 31 March 2021 is accepted for filing and will stand as an application to adduce additional evidence.
3.The application to adduce additional evidence is referred to the hearing of the appeal.
Reading the appellant's case together with the appellant's affidavit, in the context of the notice of appeal alleging a wrongful conviction, the appellant essentially seeks leave to appeal on the grounds that:
1.The conviction was unreasonable or cannot be supported having regard to the evidence. In this respect the appellant:
(a)challenges both the truthfulness of the evidence of the prosecution witnesses (chiefly MA and KC) and whether it was plausible that an assault could have occurred as alleged; and
(b)relies on the absence of any forensic evidence or medical reports as to the injuries.
2.There was a miscarriage of justice due to one or more of:
(a)The conduct of the prosecutor.
(b)Inadequate representation on the part of defence counsel.
(c)Inadequate deliberation by the jury.
(d)There is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if fresh evidence now available to the appellant had been before the jury at the trial. Here the appellant relies on:
(i)her subsequent acquittal of the related charge of having assaulted MA; and
(ii)MA's post-conviction willingness for SY to be with or in the vicinity of the appellant in apparent breach of the restraining order and in a manner that is inconsistent with the appellant having assaulted SY.
The application to adduce additional evidence is made in support of the latter ground. In terms of ground 2, the additional evidence is required to give a proper foundation to particular (d). It is also relied on, in part, to support particular (a) - here referring specifically to the 'mud map'.
It is convenient to consider the grounds as identified before determining the application to adduce additional evidence. It is also convenient to consider the grounds as identified on the basis that the additional evidence comprised in the affidavit will be admitted as additional evidence in the appeal. We will proceed on that basis.
Irrespective of whether the affidavit should be received as additional evidence in the appeal, it should be recognised that the affidavit provides argument in support of the appellant's contentions on appeal. Given that the appellant is a self-represented litigant we would receive and consider the affidavit so far as it is in the nature of submission irrespective of whether it is admitted as additional evidence in the appeal.
Ground 1: whether conviction unreasonable or cannot be supported
The legal principles relevant to a ground of appeal which alleges that a guilty verdict is unreasonable or cannot be supported by the evidence are well settled. We adopt, without repeating, what was said by this court in MEN v The State of Western Australia[6] and LTC v The State of Western Australia.[7]
[6] MEN v The State of Western Australia [2020] WASCA 118 [403] - [410].
[7] LTC v The State of Western Australia [2021] WASCA 60 [70] - [74].
In considering a ground of this nature it is necessary for the court to undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appellate court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand. The question for the court is whether, on the whole of the evidence, it was open to the jury acting rationally to be satisfied beyond reasonable doubt that the accused was guilty. The question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt. In answering this question the appellate court must bear steadily in mind the jury's advantage in resolving conflicts in the evidence of various witnesses.
In a circumstantial case it is important to consider the totality of the evidence. A doubt that may be felt when considering one part of the evidence in isolation may be resolved when considering that evidence in the context of the evidence as a whole. This is not, however, merely a circumstantial case: one witness - KC - gave direct evidence that she saw the appellant hit SY.
In terms of sufficiency and quality, the evidence adduced at trial was capable of establishing the following beyond reasonable doubt:
1.The appellant was SY's grandmother (the appellant admitted as much in the electronic record of interview and also in her cross-examination (ts 56 (23/09/20)).
2.SY did not have any facial injury before the confrontation between MA and the appellant. That was the appellant's own evidence. It was also the evidence of MA, SD, RF and two of the police officers (Senior Constable Bird and First Class Constable Foley). This effectively rendered redundant - as an irrelevant distraction - defence counsel's line of cross-examination to the effect that there was some fight between MA and KC in the preceding week in which KC had accidentally hit SY (something echoed in the appellant's materials in support of the appeal). Even if there had been such a fight the jury was entitled to accept, beyond reasonable doubt, that SY had no facial injury before the confrontation between MA and the appellant. Moreover, the photographic evidence was consistent with SY sustaining recent injuries rather than injuries arising out of a fight in the preceding week.
3.SY did have facial injuries after the confrontation between MA and the appellant. That was the evidence of MA, SD, KC, RF and the various police witnesses. It was also well supported by the photographic evidence. In any case defence counsel freely conceded at trial that the jury would not have too much difficulty in finding that SY suffered a bodily injury. Evidence of SY's reaction to the injury and the nature of the bodily injury left it well-open to the jury to be satisfied, beyond reasonable doubt, that the bodily injury interfered with SY's comfort, so as to constitute 'bodily harm' for the purposes of s 317 of the Code.[8]
[8] As to which, see Pezzano v The State of Western Australia [2020] WASCA 181 [92] - [95].
The combined force of [50.2] and [50.3] above is sufficient to answer particular (b) of the complaint that the conviction was unreasonable or cannot be supported having regard to the evidence. The absence of forensic evidence or medical reports as to SY's injuries raises no more than a false issue. To the extent that the suggestion is that there was no forensic DNA evidence to tie the appellant to SY's injuries, such evidence was never any part of the prosecution's case. Rather, as we will now come to, the evidence adduced at trial was capable of establishing to the requisite standard, by other means, that the appellant struck SY causing her facial injuries.
The evidence adduced at trial was capable of establishing beyond reasonable doubt that the appellant approached MA, while MA was holding SY, and that the appellant then proceeded to direct a series of wild 'windmill' like punches in the direction of the mother and daughter. That was the evidence of MA, SD, KC and two of the police witnesses (Senior Constable Bird and First Class Constable Foley). In this respect, contrary to the appellant's submission as recorded at [41.3] above, there were a number of other witnesses that corroborated MA's evidence.
In order to accept the evidence referred to in [52] above it was first necessary for the jury to reject the appellant's evidence to the effect that she had not thrown any punches at, hit or tried to hit MA. It was open to the jury to reject the appellant's denials in this respect having seen and heard her give evidence. There were two aspects of the appellant's evidence that might well have detracted from the jury's evaluation of the credibility and reliability of the appellant's evidence. First, the appellant denied raising her voice at MA. That might well have been considered unlikely in the context of the evidence at trial as a whole. Second, notwithstanding that the appellant admitted to fighting in a scuffle with SD, in examination-in-chief the appellant at one stage denied throwing punches towards anyone that day. In any case, on this point, there was evidence from MA, SD, KC and two of the police witnesses that directly contradicted the appellant's evidence. The jury's advantage in seeing and hearing the appellant and the other witnesses give their evidence is obvious and considerable. It was a matter for the jury to assess and weigh the credibility and reliability of the competing evidence. It was open to the jury to reject the appellant's denials having regard to the combined force of the evidence of MA, SD, KC and the two police witnesses.
Having reached this point, the evidence adduced at trial was capable of establishing beyond reasonable doubt that the appellant struck SY causing the facial injuries that she suffered. This conclusion could be reached by one or both of the following:
1.First, in our opinion, after evaluating and weighing the competing evidence at the trial in the context of the trial record as a whole, the jury was entitled to accept KC's emphatic evidence, beyond reasonable doubt, that she saw the appellant swing at MA but miss and instead hit SY.
2.Second, in our opinion, after evaluating and weighing the competing evidence at the trial in the context of the trial record as a whole, the jury was entitled to accept MA's evidence, beyond reasonable doubt, to the effect that nobody but the appellant threw any punches towards her and SY. Once that was accepted the jury was entitled to infer, as the only reasonable inference, that the appellant struck SY causing the facial injuries in that:
(a)SY had no facial injury before the confrontation between MA and the appellant;
(b)the appellant directed a series of wild punches - described as 'windmill' punches in the direction of MA and SY; and
(c)after the confrontation between MA and the appellant, SY had facial injuries - being injuries that were consistent with one of the punches missing MA but instead striking SY.
In the circumstances, the jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of evidence which they were entitled to accept, that the appellant assaulted SY (with whom she was in a family relationship) causing her bodily harm as alleged in the indictment. The verdict of guilty was not unreasonable. Nor was it unsupported by the evidence. To the contrary the verdict of guilty was supported by evidence that the jury was entitled to accept. We are not persuaded that the jury, acting rationally, should have decided that the prosecution had not proved the offence as charged. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence the subject of the indictment.
After paying full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or the correctness of the jury's verdict.
We are cognisant that the appellant has advanced some reasons why the witnesses' evidence - particularly that of MA and KC - should not be accepted. In summary the appellant challenges the truthfulness and plausibility of the witnesses' account contending that (see [39.1(a)], [41.1] and [43.1(a)] above):
1.MA's evidence was a lie. The appellant did not hit SY. Instead MA fell over causing SY's injuries.
2.KC could not have identified her, the appellant, as the appellant was pulled to the ground.
3.At the time of the alleged assault there was no allegation that SY had been hit by the appellant.
These arguments fail. As to the first matter, MA's credibility and reliability was a question for the jury. MA denied making up a story. The jury was entitled to accept MA's denial. In any case, there was no suggestion at trial that MA had fallen over and caused SY's injuries. There is no basis in the evidence for this allegation. As to the second matter, KC's evidence was that the appellant hit SY during the confrontation between MA and the appellant. This was before the further fight between the appellant and SD which turned into a scuffle on the ground. There was no impediment to KC observing that the appellant hit SY. As to the third matter, a number of the witnesses did not observe SY being hit by the appellant at the time of the confrontation between MA and the appellant. This explains why there was no immediate allegation of assault. Moreover, a lot of other things were going on at the time which would have distracted attention away from SY. The absence of an immediate allegation does not, of itself, mean that the jury must have entertained a reasonable doubt about the appellant's guilt having regard to the evidence as a whole. In any case the evidence was that KC - the one witness who directly observed the appellant hit SY - was trying to tell others that SY had blood on her face. No-one listened to KC. In this respect there was an allegation of assault at the time that SY was hit.
Finally, contrary to the appellant's submission as recorded at [41.4] above, nothing in the mobile phone video footage challenges the evidence of MA, SD, KC and the two police witnesses who saw the confrontation between MA and the appellant.
We have considered the matters specifically relied on by the appellant to impugn her conviction. They do not, individually or collectively, detract from the conclusion we have reached that it is not the case, having regard to the evidence, that the verdict of guilty on which the appellant's conviction is based is unreasonable or cannot be supported. There are, in our view, having evaluated and weighed the competing evidence at the trial in the context of the trial record as a whole, no inconsistencies, discrepancies or other inadequacies or other evidence whereby the jury, acting rationally, should have entertained a reasonable doubt as to proof of the appellant's guilt.
Ground 1 fails.
Ground 2: whether there was a miscarriage of justice
The contention of miscarriage of justice is put in four different ways (see [43.2(a)] above).
There is no reasonable basis to contend that the conduct of the prosecutor gave rise to a miscarriage of justice. The suggestion that the prosecutor improperly raised what occurred in an earlier prosecution of the appellant has already been dispelled. To the extent that the prosecutor led evidence that was relevant to other charges that arose out of the melee on 2 November 2019 that was not improper. The evidence was also relevant context to the appellant's proceedings. Otherwise the appellant complains that, in opening, the prosecutor identified the appellant in a particular cultural respect. The prosecutor did not do so. This was a matter raised by defence counsel in the course of sentencing submissions (ts 148). Particular (a) of ground 2 fails.
Particular (b) of ground 2 is similarly misconceived. An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.[9] It has not been discharged in the present case. Dealing with the various matters raised in the appellant's materials:
1.There was no reasonable basis to oppose, and no appreciable forensic advantage forgone by not opposing, MA being declared a special witness and giving her evidence by CCTV. Defence counsel's non-opposition to this course did not result in any material irregularity in the trial.
2.Defence counsel did cross-examine the prosecution witnesses on the material parts of their evidence. Indeed, contrary to one of the complaints made in the appellant's materials, MA and KC were cross-examined on whether they were involved in a fight with one another in the week preceding 2 November 2019. So far as defence counsel did not cross-examine the witnesses on the mobile phone footage, counsel's approach is capable of explanation as a legitimate forensic decision: the video did not depict the confrontation between MA and the appellant. It may also be accepted that defence counsel did not examine the witnesses on the photographic evidence. However, other than in one respect, the photographic evidence spoke for itself. The one discrepancy in the photographic evidence was clarified by the prosecutor in her examination-in-chief of Detective Senior Constable Fewster. The course taken by defence counsel in cross-examination of the prosecution witnesses did not result in a material irregularity in the trial; and, even if there was such an irregularity, there is not a significant possibility that the matters unexplored in cross-examination affected the outcome of the trial.
3.Defence counsel did not adduce evidence about the appellant wearing a finger ring or what had happened to the appellant's clothing. The appellant appears to suggest that this was a failing on the part of defence counsel as there was a lack of forensic evidence in this respect. What, if anything, might have been shown by forensic examination of these materials is a matter of conjecture. But in any event the prosecution case was based on the witnesses' testimony as to the confrontation between MA and the appellant. It was this that had to be challenged. Viewed objectively, not referring to the finger ring or the appellant's clothes was capable of reasonable explanation: it avoided the forensic risk associated with presenting what might have been characterised by the jury as little more than a weak attempt to distract or deflect given the evidence of five witnesses who had seen the confrontation between MA and the appellant.
4.Nor did defence counsel adduce the appellant's 'mud map'. This too is capable of reasonable explanation. There was other evidence, in the form of Exhibit 2, which constituted a map of the general area in which witnesses had marked various locations. The Exhibit 2 map presents as a 'Google Maps' type overhead satellite image of the home and the surrounding streets as opposed to the not to scale and somewhat rudimentary handwritten 'mud map'. Defence counsel had the appellant mark-up the Exhibit 2 map in the course of her examination-in-chief and otherwise identified where events occurred by reference to that map (ts 44 - 46, 48 - 49, 51 - 52 (23/09/20)). In those circumstances the appellant's 'mud map' was no more than surplusage.
5.Insofar as the appellant complains that defence counsel did not call witnesses, the appellant does not identify any available witnesses that should have been called and the evidence such witnesses might have given.
[9] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74], [79] - [85]. See also Huggins v The State of Western Australia [2018] WASCA 61 [376] (see also at [375] - [401] as to the relevant general principles as to when a miscarriage of justice may arise through incompetent representation).
Finally, the appellant complains that defence counsel should have had the charge referred to the Magistrates Court. Let it be assumed that, had an application to this effect been brought, it might have succeeded. It does not follow that there was a miscarriage of justice. The mere fact that the charge might have been determined in another court does not mean that there was a miscarriage of justice. The appellant's conviction followed a verdict of guilty after a trial that was procedurally fair and was conducted in accordance with law. To the extent that he is responsible, defence counsel's conduct in not having the charge referred to the Magistrates Court did not result in a material irregularity in the trial that was in fact had in the District Court.
Particular (b) of ground 2 fails.
The argument that there was a miscarriage of justice because of inadequate deliberation by the jury is without merit. The trial record demonstrates that the jury retired for about 50 minutes rather than the 10 - 15, 15 - 20 or 10 - 20 minutes variously mentioned in the appellant's materials. There is nothing to suggest that this bespeaks a failure by the jury members to observe their oath or affirmation to give a true verdict according to the evidence upon the issues to be tried. This was a simple case with limited witnesses. The evidence was in short compass. The parties' closing addresses and the trial judge's directions to the jury were completed in the morning immediately before the jury retired to consider their verdict. The evidence and the issues were fresh in the minds of the jury. The time taken by the jury in deliberation is not inconsistent with the jury properly discharging their duty. Particular (c) of ground 2 fails.
Particular (d) of ground 2 relies on various circumstances that occurred post-conviction. In this respect the matters relied on constitute 'fresh' evidence rather than 'new' evidence. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. The fresh evidence must be relevant. It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).[10]
[10] Clarke v The State of Western Australia [2018] WASCA 14 [240], [641], [722].
Properly understood, neither matter relied on by the appellant demonstrates a miscarriage of justice in this sense or (so far as the first matter might also be analysed under that rubric) establishes that the conviction is unreasonable or cannot be supported having regard to the evidence.
The first matter raised by the appellant is her post-conviction acquittal on the related assault charge against MA. However, as the appellant explains, the acquittal occurred in circumstances where the relevant prosecution witnesses (including MA) failed to attend at the Magistrates Court for the trial of the charge. There is, in our view, no significant possibility that on the basis of the evidence given at trial - and the further evidence that the same prosecution witnesses failed to attend at the Magistrates Court on the subsequent related assault charge involving MA - that a jury, acting reasonably, would have acquitted the appellant. The failure to attend the subsequent Magistrates Court trial to give evidence on a related (but separate) assault charge does not impugn in any significant way the cogency of the evidence given by the prosecution witnesses in the District Court trial on the aggravated assault charge. Moreover, given the absence of evidence in the Magistrates Court proceedings, there is no relevant inconsistency between the appellant's conviction on the charge of aggravated assault on SY causing bodily harm and the appellant's subsequent acquittal on the charge of assaulting MA. In any event, pointing to inconsistent outcomes in two separate trials is not sufficient to establish a miscarriage of justice.
All the more so the second aspect of particular (d) lacks merit. The circumstance that, post-conviction and in apparent non-conformity with the FVRO, MA has on a number of occasions left SY with or in the vicinity of the appellant would not, in our view, lead a reasonable jury to have a reasonable doubt as to the appellant's guilt. Nor is there a significant possibility that, knowing MA had been prepared to leave SY with or in the vicinity of the appellant, a jury, acting reasonably, would have acquitted the appellant. This also does not impugn in any significant way the cogency of the evidence given by MA and the other prosecution witnesses in the District Court trial.
Particular (d) of ground 2 fails. Accordingly, ground 2 fails. Neither ground 1 nor ground 2 had a reasonable prospect of success. Leave to appeal on the grounds of appeal should be refused. Consequently the conviction appeal should be dismissed.
The application to adduce additional evidence
The appellant's application to adduce additional evidence on the appeal refers expressly to the 'mud map' and a USB. The 'mud map' has already been referred to (see [64.4] above). The use that the appellant seeks to make of the files on the USB is not developed in the appellant's materials in support of the appeal. The USB itself consists of three video files. One is 40 seconds long; the second is 23 seconds long; the last, somewhat longer, is another version of Exhibit 3 - it can be put to one side as that footage was in evidence at the trial. The first two videos show a different fight. The appellant describes this as being of 'key witnesses' five days after her conviction in which the relevant witnesses attacked the appellant's daughter and cousin-in-law.
The application to adduce additional evidence on the appeal should also be taken to encompass the post-conviction facts that the appellant relies on in support of ground 2(d), namely:
1.Her acquittal on 25 January 2021 in the Magistrates Court at Kalgoorlie on the related charge of having assaulted MA.
2.The circumstance that SY had been left with or in the vicinity of the appellant by MA or MA's mother in apparent contravention of the FVRO.
For the reasons developed above, neither the 'mud map' nor the post-conviction circumstances mentioned in [74] above are able to support a ground of appeal that has a reasonable prospect of success. To this extent, conformably with the refusal of leave to appeal on those grounds, the application to adduce additional evidence on the appeal should be dismissed. This leaves the two new video files on the USB. These also fail to support a ground of appeal that has a reasonable prospect of success. Accordingly, that part of the appellant's application to adduce additional evidence on the appeal should also be dismissed.
The sentence imposed on the appellant
The maximum penalty for the offence of which the appellant was convicted is 7 years' imprisonment.
The trial judge described the circumstances of the appellant's offending conformably with the prosecution's case (ts 152 - 155).
The background to the offending was that the appellant received a message that her son, YK, was running amok. The appellant subsequently received a call informing her that YK had been injured. The appellant decided to attend with other members of her family to punish those whom she considered to be responsible. On arrival, the appellant immediately targeted MA, throwing one punch that connected with MA and a second punch that connected with SY (ts 153).
His Honour found that the appellant was intent on punishing MA and that a punch connected with SY (ts 153). The appellant hit at MA without regard for the possible consequences which could have been very serious for SY (ts 154). The trial judge accepted that the injuries suffered were minor but observed that was by good luck rather than design on the appellant's part (ts 154). The conduct was more serious because it took place in front of the appellant's family, including a number of children who were scared and terrified, and the police (ts 154 - 155).
His Honour characterised the offending as a 'serious offence' and identified that it was necessary to impose a penalty that generally deterred others from committing offences against vulnerable children (ts 156).
In terms of personal circumstances:
1.The appellant was 40 years old at the time of sentencing and did not have the benefit of youth (ts 152).
2.There were no mitigating circumstances (ts 155).
3.The appellant had no remorse (ts 155).
4.The appellant was the carer for seven children, five of whom continued to live with her and were at school (ts 156).
5.The appellant had complied with the protective bail conditions which had been imposed (ts 156).
The trial judge was provided with an oral pre-sentence report prior to sentencing. This was arranged at short notice following the conviction. An adult community corrections officer met with the appellant following conviction and provided an oral report to the trial judge. It was noted that the appellant had been subject to two community based orders following assault type convictions in 2000 and 2010. The appellant had no identifiable current drug or alcohol issues. However, the officer opined that the appellant could benefit from 'brief intervention' within supervision to address outstanding treatment needs. This would primarily be aimed at conflict resolution skills, improving emotional regulation and improving decision making ability with a view to reducing the risk of re-offending in a similar manner (ts 145 - 146).
The trial judge observed that the appellant had no assault convictions since 2010. His Honour also accepted that the appellant had satisfactorily completed community-based dispositions in the past (ts 155). There was, however, an offence of disorderly behaviour which had been committed on 24 January 2018 (ts 156 - 157). A submission was made on behalf of the appellant as to the imposition of a fine, a community-based order or an intensive supervision order. The trial judge was satisfied, however, that the offending was too serious to be met with any disposition other than a term of imprisonment (ts 156) - all the more so because specific deterrence was warranted as the appellant resorted to violence as a problem-solving remedy and was quick to do so (ts 157). His Honour determined that the appropriate sentence was 9 months' imprisonment conditionally suspended for 12 months (ts 157 - 158).
As to the basis on which the imprisonment was to be suspended, the primary judge stated:
I've given consideration as to whether that term of imprisonment might be suspended subject to conditions or to be simply suspended without conditions and again a conditionally suspended imprisonment order does stand as a more significant or serious penalty or a term of imprisonment, that is, suspended on its own. In the circumstances of this case, I do propose having had regard to the detail of the oral pre-sentence report and the recommendation with regard to treatment needs with regard to conflict resolution skills and dispute resolution, to order that the term of imprisonment is conditionally suspended as opposed to simply suspending the imprisonment order.
It would not be appropriate to simply suspend the imprisonment order and accordingly I move to the next tool in that sentencing arsenal, as it were, and propose to conditionally suspend the imprisonment order with a program requirement, that is, that you do undertake programs as directed by adult corrections with regard to conflict resolution skill and dispute resolution. I do accept the submission that the supervision aspect insofar as community work ought not be included.[11]
[11] ts 157 - 158.
His Honour considered that the community would benefit if the appellant accepted treatment and worked towards rehabilitation (ts 158 - 159).
Accordingly, the trial judge provided for conditional suspended imprisonment with a programme requirement (under s 84A of the Sentencing Act 1995 (WA)) but no supervision requirement (under s 84B of the Sentencing Act).
Grounds of appeal: sentence appeal
The appellant's appeal notice specified that the draft ground of appeal was that the sentence imposed was manifestly excessive and disproportionate to the criminality involved. Again, as with the conviction appeal, the appellant failed to file an appellant's case within the time provided in the rules. On 19 January 2021 and 10 March 2021 the court made similar orders as in the conviction appeal providing for an extension of time to file an appellant's case.
An appellant's case was filed on 15 April 2021. It should also be acknowledged that the appellant's affidavit lodged 31 March 2021 (in the conviction appeal) stated that the purpose of the appeal (ie the conviction appeal) was to 'overturn' the sentence (page 6). In that respect the appellant can be said to have challenged the sentence insofar as it is premised on her conviction. The same contention is made in the appellant's case in the sentence appeal. Since the conviction appeal has failed this aspect of the sentence appeal falls away.
Otherwise the sentence appeal focussed on the condition aspect of the terms of the conditionally suspended term of imprisonment. The appellant referred to the conditions that had been imposed pursuant to the programme requirement and submitted that:
I don't drink alcohol or do drug substances to attend any of these orders.
My last alcohol related charge was back in 2013.
I have never had any mental problems to attend any mental assessment or psychiatrist psychological report.
I don't need education I have completed up to year 10 before I started to become a young mother in 1997.
I don't know why I was put on this order this is why I'm appealing the sentencing and the conviction.
Accordingly, in substance, the appellant's complaint and sole ground of appeal is that the sentence was manifestly excessive as to type insofar as it was suspended subject to conditions including a programme requirement rather than simply being suspended (ie that it was a sentence under pt 12 of the Sentencing Act rather than pt 11 of the Act). At the appeal hearing the appellant confirmed that this was the essence of her complaint.[12]
[12] Appeal ts 17.
Disposition: sentence appeal
The general principles governing sentence appeals where it is contended that error should be implied on the basis that a sentence is manifestly excessive are well established and need not be repeated.[13] Here the complaint is not that the sentence is manifestly excessive as to length but rather that the sentence is manifestly excessive as to type. Error in this respect will be inferred where the sentence imposed is unreasonable or plainly unjust. In a case where an offender claims that his or her sentence was manifestly excessive as to type:
[T]he question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options [in s 39(2) of the Sentencing Act] were not appropriate.[14]
[13] See eg Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[14] HNA v The State of Western Australia [2016] WASCA 165 [30].
In considering whether the trial judge's disposition was open, regard must be had to: (1) the maximum penalty for the offence; (2) the standards of sentencing customarily imposed with respect to the offence; (3) the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and (4) the offender's personal circumstances.[15]
[15] HNA v The State of Western Australia [32].
In the present case, the trial judge having determined that a term of imprisonment was the only appropriate sentencing disposition but that he was not positively satisfied that it was not appropriate to suspend that term, there were two available sentencing options in terms of s 39(2) of the Sentencing Act:
1.A term of suspended imprisonment under pt 11 of the Act (see Sentencing Act s 39(2)(f)).
2.A term of conditional suspended imprisonment under pt 12 of the Act (see Sentencing Act s 39(2)(g)).
The trial judge directed himself, correctly, that the term of imprisonment should be suspended - rather than conditionally suspended - unless his Honour was positively satisfied, having regard to the relevant sentencing principles and factors, that it was not appropriate to impose suspended imprisonment (ie suspended imprisonment not subject to conditions).
Conditionally suspended imprisonment differs from suspended imprisonment insofar as conditions are imposed. The conditions are twofold. First, the 'standard obligations' in s 83 of the Act. Second, as decided by the sentencing court, one or more of the 'primary requirements' in s 84 of the Act. A person who breaches a standard obligation or a primary requirement (defined as a 'CSI requirement')[16] without reasonable excuse, proof of which is on the person, commits an offence (s 84J) and is liable to a fine of not more than $1,000 (s 84K). Also, and potentially more significantly, the offender may be ordered to serve the whole or part of the term of imprisonment that was suspended (s 84L(1)). As breach of a CSI requirement has these consequences, the trial judge was correct to characterise conditionally suspended imprisonment as a more serious penalty than suspended imprisonment.
[16] Sentencing Act s 84G.
There are circumstances in which the sentencing court may, on application of the offender or a community corrections officer, amend or cancel a CSI requirement (s 84H, s 84I).
The standard obligations under s 83 of the Act are that the offender:
(a)must report to a community corrections centre within 72 hours after being released by the court, or as otherwise ordered by the speciality court or a CCO [ie a community corrections officer]; and
(b)must notify a CCO of any change of address or place of employment within 2 clear working days after the change, or as otherwise ordered by the speciality court; and
(c)must not leave Western Australia except with, and in accordance with, the permission of the speciality court or the CEO (corrections); and
(d)must comply with section 76 of the Sentence Administration Act2003.
Section 84(1) of the Act provides:
CSI [ie conditional suspended imprisonment] must contain at least one of these primary requirements:
(a)a programme requirement under section 84A;
(b)a supervision requirement under section 84B;
(c)a curfew requirement under section 84C.
Accordingly, if the sentencing court is not positively satisfied that at least one of a programme requirement, a supervision requirement or a curfew requirement is required, no conditional suspended imprisonment order should be made. The offender should be sentenced to the lesser sentencing option of suspended imprisonment under pt 11 of the Act.
The nature and purpose of a programme requirement, a supervision requirement and a curfew requirement are specified respectively in s 84A, s 84B and s 84C of the Act. In this case the trial judge determined that there should be a programme requirement but that there was no need for a supervision requirement. It was never suggested that there should be a curfew requirement.
In relation to a 'programme requirement', s 84A of the Act provides:
(1)The purpose of a programme requirement is:
(a)to allow for any personal factors which contributed to the offender’s criminal behaviour to be assessed; and
(b)to provide an opportunity for the offender to recognise, to take steps to control and, if necessary, to receive appropriate treatment for those factors.
(2)The programme requirement is a requirement that the offender must obey the orders of the speciality court or a CCO as to:
(a)undergoing assessment by a medical practitioner, a psychiatrist, a psychologist or a social worker, or more than one of them and, if necessary, appropriate treatment;
(b)undergoing assessment and, if necessary, appropriate treatment in relation to the abuse of alcohol, drugs or other substances;
(c)attending educational, vocational, or personal development programmes or courses;
(d)residing at a specified place for the purposes of any matter in paragraph (a), (b) or (c);
(e)more than one of the above.
(3)The speciality court or a CCO must not order the offender to undergo treatment of any sort unless a person qualified to recommend or administer the treatment has recommended that the offender undergo such treatment.
(4)A person is not to administer treatment of any sort mentioned in subsection (2) to the offender without the informed consent of the offender.
(5)The requirements of a programme requirement imposed as a condition of CSI are additional to the requirements of any other programmed requirement applicable to the offender under a community order or a PSO.
(6)A programme requirement ceases to be in force when the speciality court or a CCO gives the offender notice to that effect, or when the suspension period ends, whichever happens first.
(7)A CCO must not give notice unless satisfied that the offender has complied with the programme requirement.
The present case does not involve any speciality court. Accordingly, while the trial judge provided for a programme requirement, the specific orders under the programme requirement were a matter for the relevant CCO. That said, such orders cannot exceed the scope of the permissible orders as allowed by s 84A of the Act. The sentence appeal before this court does not raise for consideration whether any orders as in fact made by the relevant CCO are outside the scope of the permissible orders as allowed by s 84A of the Act. Rather, the question is whether it was reasonably open to the trial judge, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that a programme requirement was required.
It was reasonably open for the trial judge to conclude that a programme requirement was required - and that the sentencing option of suspended imprisonment under pt 11 of the Act was not appropriate - in the circumstances of this particular case. Relevantly:
1.The offending itself was consistent with the appellant resorting to violence - the appellant rushed at MA without cause and directed a series of windmill punches towards MA and SY in circumstances where doing so might have escalated an already precarious situation and despite the presence of numerous family members.
2.The appellant had been found to have no remorse - thus demonstrating a lack of insight into her behaviour.
3.The appellant had earlier convictions for assault and disorderly behaviour. The offending was not aberrant or out of character.
4.There is an unchallenged finding that the appellant had recourse to violence as a problem-solving remedy.
5.The oral pre-sentence report identified that the appellant could benefit from intervention identifying treatment needs in terms of emotional regulation, decision making and conflict resolution.
The appellant submits that she does not use alcohol or drugs and has no mental health conditions or disabilities. Nor, it is said, does she require further education since she completed year 10. These matters are not to the point. The trial judge considered that a programme requirement was required, and imposed such a requirement as part of a conditionally suspended term of imprisonment under pt 12 of the Act, because the appellant's offending and personal circumstances, including her antecedents, bespoke a need for behavioural change in terms of enhanced conflict and dispute resolution skills to reduce the risk of re-offending. There was ample material to justify that conclusion. The imposition of a programme requirement - and a term of conditionally suspended imprisonment rather than suspended imprisonment - was not unreasonable or plainly unjust so as to signify that a substantial wrong has occurred or that there has been some misapplication of principle. We would not imply or infer error from the sentencing outcome.
The sentence appeal is without merit. The sole discernible ground of appeal as advanced in the appellant's case has no reasonable prospect of success. Leave to appeal on the ground of appeal should be refused. Consequently the sentence appeal should be dismissed.
Conclusion and orders
In the conviction appeal (CACR/146/2020), we would make orders that:
1.Leave to appeal on the grounds provided for in the appellant's case filed 7 April 2021 is refused.
2.The appeal is dismissed.
3.The appellant's application in an appeal filed 7 April 2021 to adduce additional evidence on the appeal is dismissed.
In the sentence appeal (CACR/148/2020), we would make orders that:
1.Leave to appeal on the ground provided for in the appellant's case filed 15 April 2021 is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Associate to the Honourable Justice Vaughan
3 JUNE 2021
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