Plant v Harrington - [2010] WASC 364

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PLANT -v- HARRINGTON [2010] WASC 364

CORAM: HALL J

HEARD: 10 NOVEMBER 2010

DELIVERED : 7 DECEMBER 2010

FILE NO/S: SJA 1062 of 2010

BETWEEN: TEGAN JANE PLANT
Appellant
AND
SEAN ALEXANDER HARRINGTON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :FR 5609 of 2010

Catchwords:

Criminal law - Sentence - Unlawful wounding - 'Glassing' - Whether sentence of 8 months' imprisonment manifestly excessive - Whether error in not suspending sentence

Legislation:

Criminal Code (WA), s 301
Sentencing Act 1995 (WA), s 6(4), s 39, s 76

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen
Respondent: Dr N R Barber

Solicitors:

Appellant: Samson Defence Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Hull v The State of Western Australia [2005] WASCA 194
Johnson v Hayter [2001] WASCA 118
Lowndes v The Queen [1999] HCA 299; (1999) 195 CLR 665
Powell v Tickner [2010] WASCA 224
Scolaro v Shephard [No 2] [2010] WASC 271
Skipworth v The State of Western Australia [2008] WASCA 64
Stark v The State of Western Australia [2007] WASCA 44
Vagh v The State of Western Australia [2007] WASCA 17
Ward v The State of Western Australia [No 2] [2010] WASCA 208
Wiltshire v Mafi [2010] WASCA 111

HALL J: On 20 May 2010 the appellant, Tegan Plant, pleaded guilty to a charge of unlawful wounding contrary to s 301(1) of the Criminal Code. A presentence report was ordered and on 1 July 2010 a magistrate imposed a sentence of 8 months' imprisonment. The appellant now appeals against that sentence.
An appeal notice was filed on the day the sentence was imposed. On 6 July 2010 the appellant applied for and was granted bail pending the resolution of this appeal. On 12 August 2010 leave to appeal against the sentence was granted by Jenkins J.

Grounds of appeal

The notice of appeal contains two grounds in similar terms. In effect both grounds assert that the sentence imposed by the magistrate was manifestly excessive. The first ground claims that a sentence of 8 months' imprisonment was manifestly excessive. The second ground claims that a sentence of immediate imprisonment was erroneous because a suspended term of imprisonment was open in the circumstances.
The grounds are as follows:
1.The term of eight months imprisonment imposed upon the Appellant was manifestly excessive having regard to the circumstances of the offence and the personal circumstances of the Appellant. In particular the Learned Magistrate failed to have sufficient regard to the following:
A.The circumstances of the offence, while serious, were not so serious as to require a sentence of that length having regard to all of the circumstances.
B.The personal circumstances of the Appellant including that she had no previous conviction for a violence offence.
C.The fact that the Appellant is the mother carer of a three year old child.
D.The Appellant's remorse.
E.The Appellant's plea of guilty and co‑operation with the authorities.
F.The fact that the offence was an isolated incident not indicative of a course of conduct.
G.The fact that she represented no continuing danger to the community and was extremely unlikely to reoffend.
2.The Learned Magistrate erred in imposing an immediate term of imprisonment and failed to adequately consider and failed to impose a suspended term of imprisonment which was plainly open in the circumstances. In particular the Learned Magistrate failed to have sufficient regard to the following:
A.The circumstances of the offence, while serious, were not so serious as to require a sentence of that length having regard to all of the circumstances.
B.The personal circumstances of the Appellant including that she had no previous conviction for a violence offence.
C.The fact that the Appellant is the mother carer of a three year old child.
D.The Appellant's remorse.
E.The Appellant's plea of guilty and co‑operation with the authorities
F.The fact that the offence was an isolated incident not indicative of a course of conduct.
G.The fact that she represented no continuing danger to the community and was extremely unlikely to reoffend.
At the hearing of the appeal the appellant's counsel submitted that insofar as the grounds claimed that the magistrate failed to have 'sufficient regard' for the particular matters listed, it was accepted that such a failure could not in itself establish error: Vagh v The State of Western Australia [2007] WASCA 17 [47]; Ward v The State of Western Australia [No 2] [2010] WASCA 208 [17]. Counsel for the appellant stated that, at least in respect of ground 2, the assertion could only be one of implied error. Those concessions were appropriately made.
A claim that a sentence is manifestly excessive depends on implied error being apparent from the sentence being unreasonable or plainly unjust in all of the relevant circumstances: Skipworth v The State of Western Australia [2008] WASCA 64 [9] (McLure JA). Whilst the matters listed in the particulars for each of the grounds may be relevant in considering all of the circumstances, an allegation that there was a failure to give appropriate weight to particular factors could not in itself (in the absence of some express error) form a basis for an appeal against sentence.
At the hearing of the appeal counsel for the appellant sought to add a further ground. That ground was, that the magistrate failed to take into account a relevant consideration, namely whether the appellant was provoked. I will refer to that proposed ground hereafter as ground 3.

Proceedings before the magistrate

At the proceedings before the magistrate on 1 July 2010 a statement of facts was read by the police prosecutor. Those facts were as follows:
At 10.00 pm on 26 March 2010, the accused and the victim were at the Gate Bar and Bistro on Belier Drive, North Success. Both were socialising with separate groups. The victim has walked up to the main bar in company with a friend.
The bar was crowded and, in close proximity to the victim, has turned to her left, sighting the accused. The victim has said, 'Hey, how are you going?' and moved behind the accident [sic, accused], through the crowd, brushing the accused. The accused immediately turned and, clutching a beer glass in her right hand, pushed the glass into the rear left side of the victim's head, resulting in the glass breaking. The accused has again hit the victim in the same area, before being restrained by security and escorted out of the premises.
Police were in attendance at the establishment and the accused was taken into custody. The victim sustained a cut approximately 3 centimetres long, behind her left ear and two 1 centimetre cuts on her left collarbone area. These injuries were bleeding. The victim was clearly dazed and distressed by the incident. The accused was arrested and conveyed to Cockburn police station, where she participated in a video record of interview and made admissions to the offence (ts 2).
Those facts were admitted. On behalf of the appellant it was submitted to the magistrate that the appellant and the complainant knew each other. It was said that the appellant had previously been in a relationship which had recently broken down. The appellant had been overseas on holiday and whilst there, had received text messages from the complainant. It was said that these messages had made it plain that the complainant was having a sexual relationship with the appellant's boyfriend. This caused what was described as 'an ongoing spat' between the two women.
On behalf of the appellant it was submitted that there had been no premeditation on her part and that she had had very little to drink before the incident. It was suggested that the greeting from the complainant had been in a sarcastic tone and was followed by a 'slight nudge' as the complainant was walking away from the bar. It was said that the appellant had 'just snapped on the back of the provocation'. It was not made entirely clear what the provocation was being said to be, although reference was made to this being the first time that the appellant had seen the complainant since receiving the text messages while she was overseas. It was said that the appellant had a glass in her hand having just bought a drink. It was noted that the cuts to the complainant were behind the ear and not directly to the face. It was suggested that some glass had fallen down and caused the other cuts to the top of the shoulder.
It was submitted that whilst the appellant had a criminal record it contained nothing as serious as the present offence and that there were no previous offences of violence. It was noted that the appellant was a young mother, being 24 years of age with a 3‑year‑old daughter. She was living at home with her mother and was on a single parent pension but did some casual work on the weekends as a kitchen hand. It was said that the appellant was extremely remorseful and shocked by her own behaviour and that she regretted it. This was said to have been reflected in her early plea of guilty. The appellant had written a letter of apology to the complainant, though it was not clear whether it had been sent. The complainant had obtained a restraining order which had not been opposed by the appellant. Two references that spoke positively of the appellant were tendered.
It was submitted that since the incident the appellant had not gone out socially and had been making attempts to distance herself from the environment in which the offence had occurred. She had made some attempts to engage with anger management counselling but had been unable to afford more than one session. The appellant acknowledged that she had some anger management issues. It was submitted that the appellant accepted that to physically assault the complainant was not the right way for her to fix a situation where she was emotionally upset by her former boyfriend's infidelity.
The magistrate sought clarification from the prosecutor as to whether there had been a second striking of the complainant by the appellant. It was confirmed that there had been a second 'hit', though it was not made clear whether this was with the glass.
The magistrate had the benefit of a written presentence report. The report stated that the appellant had claimed that the victim had walked up to her when she was at the bar and said hello in a sarcastic manner and had then walked behind her and pushed her with her body. The report states that the appellant said that she had then turned and struck the victim with a glass without thinking about the negative consequences of her actions. She had expressed regret for her actions stating that 'it was a stupid thing to do'. In addition the appellant claimed that after she had committed the offence she was verbally provoked by the victim and the victim's friends who called her derogatory names. She told the report writer that at the time of the offence she had only recently become aware of her boyfriend's infidelity with the complainant.
In sentencing the appellant the magistrate made the following remarks:
I have taken account of your plea of guilty at a very early opportunity, everything counsel has very ably said on your behalf, the written pre‑sentence report I have, the references and your record. Your record discloses no predisposition to offences of violence. The only thing of concern is the couple of substance abuse matters but they are minor and really not relevant overly.
You on this night had already a predisposition to dislike this person, you didn't like her, and that essentially was not simply a bumping particularly, was not an act particularly done by this person, the mere fact that this person was in your sight. Your case is very serious in that it is, from what I understand and interpret it, a thrust action of the glass. You knew you had the glass in your hand, you deliberately struck her with the glass and you came back a second time.
There is a need for general deterrence in the community. These offences with glasses are universally loathed by all members of the community, in my view, and there is a need for general deterrence. In your case specific deterrence is not quite the same because you don't have any predisposition for violence. You probably can be rehabilitated. There is no doubt about that. In fact, you have got no predisposition towards any other person except this one. It's nasty though. You thrust that glass into her. You knew what you were doing.
Provocation of course is not a defence to unlawful wounding, never has been. The provocation you might have received by getting earlier text messages is no way sufficient to allow you to have done what you did. It is a most serious matter. It involves using a glass as a weapon. It's not like the Duffy cases, Duffy defence‑type cases where a person didn't know they had a glass in their hand. You clearly did. Your actions ‑ using of a glass was to use it as a weapon.
In my view imprisonment is the only appropriate alternative. I have considered the Dinsdale principle. Whether or not then from having decided imprisonment is the only resort ‑ and I appreciate imprisonment is the sentence of last resort ‑ I don't believe there is any other appropriate disposition other than an immediate term of imprisonment and that's what I will be imposing. In my view the offence is worth 12 months but taking into account your youth, personal circumstances and your early plea of guilty, I will reduce that by a third. You will be imprisoned for eight months forthwith.
I am appreciating Murray J's recent decision. I distinguish it on the basis that in that case his Honour accepted the person didn't intend to wound with a glass, didn't know they had a glass. I think this is a different case. Thank you. Please stand down (ts 6 ‑ 7).

Ground 1 - Was an 8 month sentence excessive?

An appellate court is not entitled to intervene merely because it might exercise a sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 299; (1999) 195 CLR 665. An appellate court should only intervene if a material error of fact or law is discerned in the sentencing judge's reasons or if the result is manifestly unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325.
Sentencing involves the exercise of a judicial discretion. Where there is no express error but the outcome is one that on the facts is unreasonable or plainly unjust the appellate court may infer that there has been a failure to properly exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499, 504 ‑ 505.
The failure to mention a circumstance of the offence or one of the personal circumstances of an offender does not necessarily mean that there has been a failure to take into account that matter. What is necessary is that the sentencing judge's reasons must reveal the process of reasoning which produced the outcome to the extent necessary to enable the court to determine whether or not the judgment is erroneous: Hull v The State of Western Australia [2005] WASCA 194 [31].
In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standard of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).
Ground 1 is directed to whether the length of sentence was appropriate in all of the circumstances rather than whether that sentence should have been suspended (which is the subject of ground 2). Accordingly, and assuming for the purposes of the present discussion that a sentence of imprisonment was otherwise appropriate, the question is whether a sentence of 8 months' imprisonment was manifestly excessive.
The maximum statutory penalty for an offence of this type is 5 years' imprisonment, however, when dealt with summarily the maximum sentence is one of 2 years' imprisonment: s 301 Criminal Code. However, notwithstanding that the maximum sentence that the magistrate could impose was one of 2 years, it is relevant to have regard to the statutory maximum and not merely the jurisdictional limit in assessing the seriousness of the offence: Johnson v Hayter [2001] WASCA 118. Furthermore, the existence of a jurisdictional limit does not preclude a court from starting at a point in the sentencing range which exceeds that limit provided that the sentence finally reached is within it: Wiltshire v Mafi [2010] WASCA 111.
As to the standards of sentencing customarily observed in respect of this crime, unlawful woundings can occur in a wide variety of circumstances and it is not possible to discern a range within which sentences usually fall such that a sentence outside that range would be indicative of error. A number of cases of this type have recently been considered in Scolaro v Shephard [No 2] [2010] WASC 271 and in Powell v Tickner [2010] WASCA 224.
Factors that may be relevant to sentencing for this type of offence include the use of a glass as a weapon, whether that use was intentional, whether the glass was used deliberately against a vulnerable part of the body, the nature and extent of the injuries, the force that was used, whether the offence occurred on the spur of the moment, whether there was any element of provocation and the importance of general deterrence. It might also be relevant to consider whether the violence was random or occurred in the context of some relationship between the parties. The significance of general deterrence is particularly acute where there is a random act of violence which has no obvious explanation: Stark v The State of Western Australia [2007] WASCA 44 [15] (Wheeler J).
Taking into account the circumstances of the offence, the importance of general deterrence, the extent of the injuries inflicted, the plea of guilty and the personal circumstances of the appellant a sentence of 8 months' imprisonment would not appear to be one that is outside the discretionary range. Accordingly, ground 1 must fail.

Ground 2

A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4) the Sentencing Act 1995 (WA).
Section 39(2) of the Act sets out the sentencing options. A court must not use an option in s 39(2) unless satisfied it is not appropriate to use any of the options listed before that option: s 39(3). The ultimate option is a term of immediate imprisonment. The two options immediately preceding immediate imprisonment are a conditional suspended imprisonment order and a suspended imprisonment order respectively.
Where a court determines that a sentence of imprisonment of 60 months or less is appropriate it may order that the whole of that term be suspended for a period not exceeding 24 months: s 76 Sentencing Act. In Dinsdale v The Queen Kirby J held that there was a two stage process required by s 76. The first stage involves looking at all the relevant factors that determine whether a sentence of imprisonment is the only appropriate option. The second stage involves examining all the same considerations again in determining whether to suspend the term of imprisonment. Kirby J (with whom Gaudron and Gummow JJ agreed on this point) held that rehabilitation was not the only relevant factor in considering whether suspension was appropriate and that all of the relevant circumstances needed to be considered.

There are some offences where, due to the weight given to general deterrence, a sentence of immediate imprisonment is ordinarily the only appropriate sentencing option. In Powell v Tickner, a case involving unlawful wounding by glassing, McLure P gave consideration as to whether such cases fall into this category. Her Honour said:
There are a range of offences where, because of the weight given to general deterrence, a sentence of immediate imprisonment is ordinarily (but not inevitably) the only appropriate sentencing option. Examples include drug trafficking, sexual offending against children, stealing as a servant and fraud on the revenue. However, the use of glass as a weapon causing injury is not itself a discrete offence. The use of glass as a weapon causing injury can be a circumstance of a wide variety of different offences, the seriousness and maximum penalty for which vary greatly.
As the seriousness of the potential offences involving the use of glass as a weapon causing injury and the seriousness of the circumstances of the offending are so highly variable, it cannot be said that ordinarily a term of immediate imprisonment should be imposed [12] ‑ [13].
However, given the particular circumstances in that case her Honour concluded that an immediate term of imprisonment was the only appropriate sentencing option. In this regard reference was made to the appellant having intentionally used a glass as a weapon and inflicting serious disfiguring injuries that had ongoing physical and psychological effects upon the victim. The appellant's conduct was described as grossly disproportionate in the circumstances. Her Honour also said that the frequency with which conduct of that nature and seriousness was occurring in this State justified giving increased weight to general deterrence.
In the same case Buss JA also considered whether there were circumstances in which a term of imprisonment to be served immediately would ordinarily be required. His Honour said:
… although the proper sentencing disposition in any case depends on the facts and circumstances of the particular offending and offender, the apparent frequency of glassing attacks, and the necessity to give greater weight to general deterrence, indicates that a term of imprisonment to be served immediately will ordinarily be required where:
(a)the glass has been used intentionally as a weapon and has been used intentionally to harm the victim (even if there was no intention to cause harm to the degree actually inflicted);
(b)the offender has not reacted instinctively to a serious provocation (for example, a provocation of or comparable to the kind which occurred in Etrelezis); and
(c)seriously disfiguring injuries (or other serious injuries) have been caused to the complainant,
despite the relative youth of an adult offender or the existence of generally good personal antecedents [125].
Thus, to the extent that it could be said that an unlawful wounding with a glass would ordinarily require a term of immediate imprisonment this will be where serious aggravating circumstances of the type described are in existence. That, of course, is not to say that cases which do not have those features cannot attract terms of imprisonment to be immediately served.
At least one of the features referred to by McLure P and Buss JA in Powell v Tickner, that is the causing of seriously disfiguring injuries, was not in existence in this case. Furthermore, even in those cases where the circumstances fall within those described by Buss JA the possibility of a suspended sentence is not precluded. In Collins v The State of Western Australia [2007] WASCA 108 McLure JA said:
However, even if it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to suspend the term of imprisonment (or to impose another lesser sentence). The purpose of identifying the general position is to provide guidance to sentencing judges. Where such guidance is provided, the question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence [21].
In Skipworth v The State of Western Australia McLure JA set out the relevant principles to be applied when considering the sentencing option of suspended imprisonment. Her Honour said at [8]:
The legal principles relevant to the sentencing options of suspended imprisonment and conditional suspended imprisonment under s 39(2) of the Sentencing Act 1995 (WA) are set out in Dinsdale. I refer to them in detail in Collins v The State of Western Australia [2007] WASCA 108 [12] ‑ [18]. I do not propose to repeat all the principles here. It is sufficient for present purposes to note that the court cannot impose a sentence of immediate imprisonment unless satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or other lesser sentence. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale [85].
In submissions it was suggested that if I formed the view that a suspended sentence was not inappropriate then it followed that there must have been error on the part of the magistrate. Whilst I readily accept that it would not be appropriate to impose a sentence of imprisonment to be served unless a suspended sentence had been excluded, it does not follow that my own view of what outcomes may be appropriate must necessarily prevail. If that were the case then the deference accorded to discretionary decisions would be undermined.
The very existence of a discretion presupposes that sentences other than that imposed may have been open. I accept that the discretion is constrained by the requirements of s 39 of the Sentencing Act. However, the discretion of the primary sentencer does not only operate at the level of determining the final disposition. It also operates in determining what weight is to be given to relevant factors. In this regard I refer to what was said by Roberts‑Smith JA in Vagh v The State of Western Australia at [47]:
The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499).
An appellate judge must avoid the risk of too readily concluding that there was error on the basis of his or her own assessment of the circumstances. Accordingly, in my view, the appropriate question is not whether the appellate court considers on its own assessment of the circumstances that it was open to impose a suspended sentence but whether it was reasonably open to the magistrate to take a view of the facts and circumstances that would result in a conclusion that a suspended sentence was not appropriate.
In the present case the magistrate referred briefly to the 'Dinsdale principles'. He was not obliged to explain his processes in any more detail than this. It can be inferred that he was conscious of the need to consider a suspended sentence and to reconsider all of the relevant circumstances again in doing so. However, the question remains whether he could properly reach a conclusion that a suspended sentence was inappropriate in all of the circumstances.
There were some features of this offending that could properly be viewed as aggravating. The use of a glass to deliberately cause harm was the most significant of these. The reason why the harm was inflicted can also be relevant. In the present case the magistrate found that the appellant had a predisposition to dislike the complainant. He appears to have been of the view that it was these feelings, rather than any bumping by the complainant, that caused the appellant to act as she did. It was open on the facts for the magistrate to form the view that this was an offence committed out of pre‑existing anger. That could properly be viewed as being more serious than an offence that occurs in the course of a serious and sudden physical or verbal altercation. That is particularly so where there was no suggestion that the appellant was intoxicated or that her judgment was in any way clouded by having drunk alcohol.
Another factor which appears to have influenced the magistrate was whether the conduct of the appellant involved a second 'hit'. I accept that it is not clear from the prosecution facts whether the second hit involved use of a glass. However, equally, it is not clear that the magistrate concluded that it did. He referred simply to the appellant having come 'back a second time'. Of course if the glass was used a second time this would be an aggravating factor. However, even if the second hit did not involve the glass it would still be relevant as indicating the state of mind of the appellant. The fact that the appellant persisted in her attack on the complainant, even to the limited extent of a second hit without the glass, indicates that this was not simply a reflexive action but a deliberate and angry assault. Whatever view the magistrate had regarding what the second hit involved, for the purpose of assessing all of the circumstances I will proceed on the basis it did not involve use of the glass.
On the other hand there were a number of mitigating factors. The injuries as described appear not to have been significant. There was a 3 cm cut behind the ear and two smaller cuts to the shoulder. Whilst there was reference in the facts to bleeding there was no suggestion of any permanent or disabling injuries. Unlike in a number of other cases, such as Scolaro and Powell v Tickner there was no suggestion that there had been a requirement for medical treatment or plastic surgery. There was also no suggestion that the victim had suffered any psychological consequences as a result of the offence. There was, however, reference to a restraining order which does suggest some apprehension on the part of the complainant as regards the appellant. The extent of injuries can be fortuitously small; but they can also be a reflection of the degree of force that was used. Whatever the reason there can be no doubt that the degree of injury caused is an important factor to be taken into account in sentencing.
It was suggested that the appellant acted on the spur of the moment in circumstances where she unexpectedly met the complainant for the first time after discovering infidelity between her former boyfriend and the complainant. The presentence report indicates that this infidelity had caused the breakdown of the appellant's relationship with her boyfriend. However, it was open to the magistrate to conclude, as he did, that the provocation caused by receiving the earlier text messages in no way justified what the appellant did.
The magistrate placed emphasis on general deterrence. It was appropriate to do so. The Court of Appeal has recently stated in Powell v Tickner that general deterrence must be given increased weight in cases involving unlawful woundings caused by use of a glass as a weapon. In this regard Buss JA accepted that statistics provided to the court confirmed that the frequency of glassing attacks in Western Australia was significant. It does not follow from this that every case of unlawful wounding involving a glass will necessarily result in a sentence of imprisonment to be served. Nor does it exclude the possibility that cases may exist where the imposition of such a sentence may be an inappropriate exercise of discretion given all of the circumstances.
In the present case, in my view, it was properly open to the magistrate to form a view of the circumstances that justified a conclusion that a suspended sentence was inappropriate. It was open to his Honour to give less weight to the suggestion that the appellant had been provoked by the recent history and the circumstances on that night. It was also open to give less weight to matters personal to the appellant, particularly given the importance of general deterrence. I am unable to conclude, therefore, that the magistrate erred in the exercise of his discretion. Accordingly, ground 2 fails.

Ground 3

It was argued that on one reading of the magistrate's reasons it was possible to reach the conclusion that the magistrate thought that provocation was not relevant at all. In this regard provocation was not being spoken of as a defence which provided any legal excuse for the conduct but in the sense referred to in Scolaro, that is as context which may mitigate the seriousness of the conduct.
His Honour referred to provocation not being a defence to unlawful wounding, which is of course correct. He then went on to say that any provocation the appellant might have received by getting earlier text messages was not sufficient to allow the appellant to do what she did. It seems to me that given that this sentence follows immediately from a reference to provocation not being a defence this must necessarily be a consideration by the magistrate as to whether provocation in the wider sense provided a sufficient explanation for why the appellant behaved as she did.
Insofar as there was only a reference to the text messages it must be noted that the magistrate earlier in his reasons also took into account that there had been a bumping on the part of the complainant. It is difficult to discern from the magistrate's reasons whether he formed any conclusion regarding the suggestion that a sarcastic remark together with the bumping and the earlier text messages did provide some measure of explanation for why the appellant acted as she did. However, there is no reason to think that the magistrate did not take all relevant factors into account. Furthermore, this is a case quite unlike Scolaro where the magistrate made a specific factual error in concluding that the conduct was unprovoked. No such error is apparent here. Accordingly, in my view, this ground is without merit and leave in respect of it is refused.