Osborne v Fuller
[2006] WASC 295
OSBORNE -v- FULLER [2006] WASC 295
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 295 | |
| 20/12/2006 | |||
| Case No: | SJA:1093/2006 | 18 DECEMBER 2006 | |
| Coram: | MILLER J | 17/12/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal against sentence allowed Sentence set aside Resentenced to 10 months' imprisonment | ||
| D | |||
| PDF Version |
| Parties: | EMMA ANNE OSBORNE ADRIAN DAVID FULLER |
Catchwords: | Criminal law Sentencing Magistrates' Court Assault occasioning bodily harm Young offender with 3yearold child Whether immediate sentence of imprisonment required Whether personal circumstances sufficiently taken into account |
Legislation: | Sentence Administration Act 2003 (WA), s 23(3) Sentencing Act 1995 (WA), s 89(2) Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, sch 1 |
Case References: | Nevermann (1989) 43 A Crim R 347 Shooter v The Queen, unreported; CCA SCt of WA; Library No 970638; 21 November 1997 Dinsdale v The Queen (2000) 202 CLR 321 Etrelezis v The Queen [2001] WASCA 327 Hull v The State of Western Australia [2005] WASCA 194 Johnson v Hayter [2001] WASCA 118 Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74 Long v Mayger [2004] WASCA 41 Lowndes v The Queen (1999) 195 CLR 665 Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993 Richardson v Mulvall [2003] WASCA 283 White v Taylor [2001] WASCA 350 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ADRIAN DAVID FULLER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE W G TARR
File No : PE 43577 of 2006
Catchwords:
Criminal law - Sentencing - Magistrates' Court - Assault occasioning bodily harm - Young offender with 3yearold child - Whether immediate sentence of imprisonment required - Whether personal circumstances sufficiently taken into account
(Page 2)
Legislation:
Sentence Administration Act 2003 (WA), s 23(3)
Sentencing Act 1995 (WA), s 89(2)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, sch 1
Result:
Leave to appeal granted
Appeal against sentence allowed
Sentence set aside
Resentenced to 10 months' imprisonment
Category: D
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Ms K C Cook
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nevermann (1989) 43 A Crim R 347
Shooter v The Queen, unreported; CCA SCt of WA; Library No 970638; 21 November 1997
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
Hull v The State of Western Australia [2005] WASCA 194
Johnson v Hayter [2001] WASCA 118
(Page 3)
Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74
Long v Mayger [2004] WASCA 41
Lowndes v The Queen (1999) 195 CLR 665
Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993
Richardson v Mulvall [2003] WASCA 283
White v Taylor [2001] WASCA 350
(Page 4)
1 MILLER J: This is an application for leave to appeal and for the hearing of an appeal on the part of Emma Anne Osborne, pursuant to an order made by Blaxell J on 21 November 2006. His Honour then ordered that the application for leave to appeal and the appeal be heard together and excused the need for the filing of any appeal books.
2 Emma Anne Osborne ("the appellant") seeks leave to appeal a sentence imposed in the Magistrates' Court on 10 August 2006 by Mr W Tarr SM, when she was sentenced to imprisonment for 14 months with eligibility for parole.
3 The grounds of appeal which are set out in the application for leave to appeal are that the learned Magistrate erred in concluding that immediate imprisonment was the only appropriate disposition, having regard to four factors. They are:
(a) the appellant's plea of guilty and remorse;
(b) the appellant's youth;
(c) the appellant's family responsibilities; namely, that she is the mother of a 3-year-old child; and
(d) the appellant's willingness to engage in counselling to address unresolved psychological issues.
4 The appellant had been charged with the offence of assault occasioning bodily harm. That offence was alleged to have occurred on 3 August 2006, at 2.55 am. The location of the offence was Parker Street, Northbridge. The statement of material facts which was read to the Court was to the effect that, without provocation, a co-accused of the appellant had punched Ms Natasha Bygraves ("the victim") to the left side of her face. The victim had not retaliated and had continued walking south on Parker Street, away from the co-accused. After walking a short distance, she was approached and grabbed by the hair from behind and punched nine times to her face and head, kneed and kicked four times to her body and legs by the co-accused.
5 The victim was then pulled to the ground by her hair by this appellant. She landed on her face on the bitumen surface and was then punched in the face 15 times and had her head lifted off the ground and forced back onto the bitumen surface seven times. All of these incidents were alleged to have been perpetrated by the appellant. The Court was informed that at no time did the victim retaliate or attempt to harm the appellant as she did not know them, and there had been no confrontation before the incident in question.
(Page 5)
6 The victim suffered significant bodily harm. She had a broken nose, significant swelling to her right arm, cuts to her right arm, multiple bruises to her face, head and forearm. She was treated at Royal Perth Hospital and was in hospital at the time the statement of facts was prepared.
7 The learned Magistrate had the opportunity of viewing the incident on a video. He described the appellant's attack as vicious and sustained. It had been put to him that there was some provocation by reason of a prior incident, but the learned Magistrate said that he was unable to reach any conclusion about that and, in any event, it would not have excused the appellant for turning on the victim as she did. The learned Magistrate then pointed out that there was nothing threatening in the way in which the victim acted and that she had been walking away from the appellant and her co-accused when the appellant went up behind her and pulled her hair, and began punching her. The learned Magistrate counted 14 punches that the appellant delivered and noted that she then grabbed the victim by the head and banged her head about seven times into the roadway, leaving her apparently unconscious.
8 The learned Magistrate noted that alcohol was a factor in the appellant's conduct, but pointed out that there was a general concern in the community about unprovoked assaults on members of the public in the Northbridge area. Presumably, the learned Magistrate made mention of this in the context of the need for deterrent sentences.
9 The learned Magistrate took the view that the only way the appellant's behaviour could be dealt with was by an immediate term of imprisonment. He considered that only a deterrent penalty of that type was appropriate, not only for the appellant herself, but also for others in the community.
10 The learned Magistrate pointed out that in the Magistrates' Court the maximum penalty for assault occasioning bodily harm was 2 years. He concluded that an 18-month term was appropriate in all the circumstances, which he discounted for the early plea of guilty, although pointing out that there was overwhelming evidence of guilt. The 18-month sentence was thus reduced to 14 months and the appellant was made eligible for parole.
11 The learned Magistrate correctly stated that he was not required to reduce the 14-month sentence by one-third to accord with the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). That was because cl 2 of sch 1 of that Act was inapplicable by reason of
(Page 6)
- cl 2(5) which provides that the clause does not apply if the statutory penalty for which the offender is being sentenced has been amended since the new provisions commenced. The statutory penalty for the offence of assault occasioning bodily harm has been amended since the commencement date of the Sentencing Legislation Amendment and Repeal Act 2003.
12 The appellant contends that the sentence of 14 months' imprisonment was in error by reason of the fact that it was a sentence of immediate imprisonment. The contention of the appellant is that, although the offence was of a very serious nature, the learned Magistrate erred in that he did not properly consider whether the sentence should be suspended.
13 It seems clear to me that the learned Magistrate took the view that a sentence of imprisonment be served immediately was the only appropriate sentence because of the need for deterrence of the appellant and of the community generally. That was clearly the reason why the sentence was pronounced to be one that should be served immediately.
14 It is not necessary for a Magistrate to state in every case that consideration has been given to the question of suspension of sentence: Shooter v The Queen, unreported; CCA SCt of WA; Library No 970638; 21 November 1997 at page 4 per Ipp J:
"Suspending the sentence was an obvious possibility and obviously should have been considered, together with other possible options such as probation. However, it was not incumbent upon his Honour, when declining to uphold the submission advanced on the applicant’s behalf, to list each and every form of non-custodial option considered by him. In practice this is seldom, if ever, done, and there is no need to require it to be done. Accordingly, his omission to refer expressly to the possibility of suspending the sentence of imprisonment should not, in my view, lead to an inference that this possibility escaped his Honour's attention."
- Comments to the same effect can be found in Nevermann (1989) 43 A Crim R 347 per Malcolm CJ at 350.
15 There is no doubt that the learned Magistrate was dealing with a very serious assault. He had witnessed on video the circumstances of the assault and the account of those circumstances does indicate that it was a very vicious attack in which the complainant sustained injury.
(Page 7)
16 Although the learned Magistrate did not detail matters personal to the appellant, there was evidence before him which indicated that the appellant was only 18 years of age at the age of the offence (although nearly 19). She did have a prior conviction for common assault, for which she was granted a spent conviction. That conviction was on 5 April 2006 and the penalty was a fine of $400 with a spent conviction order. It was said that she came from a good, supportive family and she was the mother of a 3-year-old child.
17 In all the circumstances of the case, I consider that it was open to the learned Magistrate to impose a term of imprisonment to be served immediately. The factors of personal and general deterrence loomed large in the case, particularly as the assault had occurred in Northbridge, a popular entertainment venue in Perth, in relation to which the learned Magistrate commented that there was concern in the community about unprovoked assaults in the area.
18 However, given the age of the appellant, her minimal record, and the fact that she had a 3-year-old child, the sentence of 14 months' imprisonment was a substantial penalty.
19 The learned Magistrate made it clear that his "starting-point was 18 months" and this was reduced by only 4 months to accommodate the appellant's plea of guilty. There were, however, other factors which would, in my view, have justified a greater discount on the "starting-point" than was given. The age of the offender, her relatively minor record and the fact that she was caring for a 3-year-old child are the paramount considerations in this respect. All of those factors lead me to the view that an appropriate sentence in the case would have been 10 months' imprisonment. Such a sentence would not allow for an order for parole (s 89(2) Sentencing Act1995 (WA)). Where, however, a prisoner is serving a term of imprisonment of less than 12 months, a community based order is required to make a parole order pursuant to s 23(3) of the Sentence Administration Act 2003 (WA) after the prisoner has served one-half of the term. It follows that the appellant would be entitled to what is termed "CEO parole" at the expiration of 5 months from 3 August 2006.
20 Accordingly, I would grant leave to appeal in this matter, allow the appeal against sentence and set aside the sentence imposed by the learned Magistrate on 3 August 2006. In lieu thereof, I would impose a sentence of 10 months' imprisonment, effective from 3 August 2006.
(Page 8)
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