Powell v Tickner
[2010] WASCA 224
•23 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: POWELL -v- TICKNER [2010] WASCA 224
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 8 SEPTEMBER 2010
DELIVERED : 23 NOVEMBER 2010
FILE NO/S: CACR 102 of 2010
BETWEEN: LENA MARGARET POWELL
Appellant
AND
MARK HANS TICKNER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
Citation :TICKNER -v- POWELL [2010] WASC 142
File No :SJA 1034 of 2010
Catchwords:
Criminal law - Sentencing - Unlawful wounding by 'glassing' - The relevance of 'community expectations' - The prevalence of 'glassing' attacks - Sentencing standards - Greater weight to be given to general deterrence - Whether term of imprisonment to be served immediately was the only appropriate sentencing option
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2), s 16(2), s 41(3)(c)
Result:
Appeal allowed
Respondent re-sentenced
Category: A
Representation:
Counsel:
Appellant: Mr J McGrath
Respondent: Mr A J Robson
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Curtis v Sidik [1999] NTSC 135; (1999) 119 A Crim R 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v Duong [2006] VSCA 78
Director of Public Prosecutions v Watson [2004] TASSC 54
Duggan v Coelho [2009] WASC 372
Etrelezis v The Queen [2001] WASCA 327
Janerka v Bethell [2002] WASCA 198
Long v Mayger [2004] WASCA 41
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Nguyen v Lassau [2010] WASC 240
Pedersen v The State of Western Australia [2010] WASCA 175
Poyner v The Queen (1986) 66 ALR 264
R v Clarke [1996] 2 VR 520
R v Dowie [1989] Tas R 167
R v Downie [1998] 2 VR 517
R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209
R v Liddington (1997) 18 WAR 394
R v Nemer [2003] SASC 375
R v Peterson [1984] WAR 329
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Scolaro v Shephard [No 2] [2010] WASC 271
Stark v The State of Western Australia [2007] WASCA 44
The State of Western Australia v Johnson [2009] WASCA 224
Tickner v Powell [2010] WASC 142
Walker v Allen [2006] WASC 89
WCB v The Queen [2010] VSCA 230
Wiltshire v Mafi [2010] WASCA 111
Winch v The Queen [2010] VSCA 141
Yardley v Betts (1979) 22 SASR 108
Table of Contents
McLure P's reasons ………………………………………………………………...……5
Buss JA's reasons……………………………………………………………………...…..7
The facts and circumstances of the offending
The magistrate's decision and reasoning
Murray J's decision and reasoning
The State's grounds of appeal to this court
Manifest inadequacy
Inadequate weight
The suspension of a term of imprisonment
The present appeal: the maximum available penalty
The present appeal: the standards of sentencing customarily observed
Sentencing and the prevalence of an offence
Sentencing and community expectations
The prevalence of 'glassing' in Western Australia
The merits of ground 1
The merits of ground 2
The result of the appeal and the re‑sentencing of the respondent
Postscript
Mazza J's reasons……………………………………………………………………...…38
McLURE P: I agree with the orders proposed by Buss JA. I can shortly state my reasons for that conclusion as all the relevant facts and background material are detailed by Buss JA.
At the hearing of the appeal, the appellant sought and obtained leave to split the original ground for which leave to appeal was granted. A ground of appeal will receive a grant of leave if its intended scope and substance is apparent, either on its face or when read together with the written submissions. That approach is taken to avoid incurring unnecessary interlocutory costs and associated delays in the hearing of the appeal. The two amended grounds of appeal reflect the substance of the original ground.
I agree that the magistrate erred in his approach to the exercise of the sentencing discretion. He concluded that the sentencing discretion has to be exercised in accordance with, and within the scope of, community expectations which in this case dictated the imposition of a term of immediate imprisonment.
There can be no doubt that it is essential that the community have confidence in the administration of the criminal justice system, including the sentencing of criminal offenders. The power of a judicial officer to impose a sentence is regulated by statute and the common law. There is a highly developed and structured framework of sentencing principles which specify inter alia, the purpose and objects of sentencing, the factors which must be taken into account and the factors which are irrelevant in the sentencing process.
Relevant sentencing factors include the particular circumstances of the offending and the personal circumstances of the offender. The sentencing principles provide for individualised outcomes reflecting all relevant circumstances of the particular case whilst at the same time seeking to achieve broad consistency with sentences imposed in this jurisdiction for offences of the same or a similar type.
General community values and concerns provide part of the relevant factual matrix against which the sentencer evaluates the weight to be given in balancing the various sentencing objectives, which include punishment, retribution, protection of the public, deterrence (specific and general) and rehabilitation.
It is not the task of the judicial officer to (try to) identify the sentence the community expects and then impose it. The community is not privy to all of the relevant factual material and principles that a judicial officer is required by law to take into account in sentencing a particular offender for one or more offences. The role of the judicial officer is to make an independent assessment as to the appropriate sentence according to law.
However, the application of the sentencing principles is intended to result in a sentence which, in all the relevant circumstances of the particular case, should be consistent with the reasonable expectations of the community as a whole. Appellate review of sentences is a means of rectifying errors which have the potential to impact on public confidence.
Although the magistrate erred in his sentencing approach, I am not persuaded that the error resulted in an inappropriate sentence. I agree with Buss JA for the reasons he gives that Murray J erred in his identification of the circumstances of the offending. The only reasonable inferences on the facts found by the magistrate are that the respondent intentionally used the glass as a weapon and intentionally used it to cause harm to the complainant (although not the actual harm inflicted). Although there was no finding that the respondent intended that the glass should break, such an outcome was clearly foreseeable on the proven facts. The error made by Murray J materially influenced his conclusion that the magistrate erred in imposing a term of immediate imprisonment and in re‑sentencing the respondent to a suspended term of imprisonment.
A factor which weighed heavily with the magistrate was the frequency with which glassing incidents are now occurring in the community. In the absence of statistical evidence, magistrates and District Court judges are in the best position to make a reliable assessment from time to time of the prevalence of offences of this nature. This court requested the appellant to provide statistical evidence relating to the frequency of glassing incidents in this State over recent years. The limited information available to the appellant went no further than supporting the assessment made by the magistrate. The trend in this State is consistent with experience in other Australian jurisdictions. The Victorian Court of Appeal in Winch v The Queen [2010] VSCA 141, referred to the prevalence of glassing and noted that glassing cases have a number of recurrent features:
The typical glassing … occurs in or near licensed premises. It is usually an act of alcohol-fuelled aggression, in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event [32].
A significant increase in the frequency of offending of a particular type and seriousness can justify an increase in the weight accorded to
general deterrence. This has occurred in sentencing for serious glassing cases in Victoria notwithstanding the recurrent features of the offenders: Winch [44]. An increase in the weight given to general deterrence is accompanied by a reduction in the weight accorded to matters personal to the offender, including his or her prior good character.
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.
However, notwithstanding the many mitigatory factors in this case, a term of immediate imprisonment is the only appropriate sentencing option. The circumstances of the offending are serious. The appellant intentionally used the glass as a weapon and inflicted serious disfiguring injuries to the complainant which have had ongoing physical and psychological effects. The appellant's conduct was grossly disproportionate in the circumstances, attributable no doubt to the level of his intoxication. The frequency with which conduct of this nature and seriousness is occurring in this State justifies giving increased weight to general deterrence.
After the hearing of this appeal, the co‑accused Jacob Stone, was tried in the Magistrates Court on the charge of unlawful wounding. Mr Stone was acquitted of that charge and instead convicted of being an accessory after the fact for which he received a fine of $2,000. It was not suggested by either party that these matters impacted in any material way on the sentencing of the appellant. That is also my assessment.
BUSS JA: On 20 January 2010, the respondent was convicted in the Magistrates Court at Perth, on his plea of guilty, on one count of unlawful wounding, contrary to s 301(1) of the Criminal Code (WA).
On 11 March 2010, Magistrate Heaney sentenced the respondent to a term of 18 months' immediate imprisonment. A parole eligibility order was made.
The respondent appealed to the Supreme Court against the magistrate's sentencing decision. Murray J heard the appeal. On 11 June 2010, his Honour ordered that the appeal be allowed, the sentence imposed by the magistrate be set aside and the respondent be re‑sentenced to a term of 18 months' imprisonment, conditionally suspended for 18 months, with supervision and programme requirements.
When he was re‑sentenced by Murray J, the respondent had served 3 months and 11 days in custody, being 11 days on remand between 23 November 2009 and 3 December 2009 and 3 months as a sentenced prisoner between 11 March 2010 and 11 June 2010.
The appellant appeals to this court, pursuant to s 16(2) of the Criminal Appeals Act 2004 (WA), against Murray J's decision.
The facts and circumstances of the offending
The facts and circumstances of the offending which I am about to recount are derived from the findings of the magistrate.
On 22 November 2009 at about 10.00 pm, the complainant (Clinton Theyer), the respondent and the respondent's co‑accused (Jacob Stone) were at the Inglewood Hotel. The complainant and the respondent had a verbal altercation. Shortly afterwards, the complainant left the hotel. The respondent informed his co‑accused about the altercation and identified the complainant to him. As the complainant was about to get into his (the complainant's) motor vehicle, the co‑accused left the hotel, ran up to the complainant and smashed a glass into the left side of his face. The complainant responded by raising his fists as if he was going to strike the co‑accused. This action was seen by the respondent who had also left the hotel with a glass. He ran towards the complainant and smashed the glass into the right side of his face. Both glasses shattered upon impact. The respondent and his co‑accused then left the scene.
The complainant was taken to Royal Perth Hospital. He suffered major injuries to his right eye and face. He had deep lacerations near both eyes and to his ear lobe. The lacerations were sutured and he was discharged several hours later. The complainant required extensive plastic surgery. Subsequently, he underwent additional plastic surgery on the skin adjacent to his right eye. There is scarring around this eye. The complainant has experienced psychological trauma as a result of the incident. He has been referred to a clinical psychologist.
Police apprehended the respondent and his co‑accused at Sir Charles Gairdner Hospital. Each of them had sought treatment for injuries to his right hand caused by the shattering of the glass he smashed into the complainant's face.
When the appeal to this court was heard, the co‑accused had been charged but not yet tried in connection with his alleged role in the incident involving the complainant.
The magistrate's decision and reasoning
In his sentencing remarks, the magistrate recounted the facts and circumstances of the offending which I have set out at [22] ‑ [24] above.
His Honour referred to a pre‑sentence report that had been obtained. In the report, the author recorded the respondent's comments about the offending, as follows:
[P]rior to the commission of the offence, he was drinking at his friend's house for around 3 hours; 6 to 9pm approximately. In that time, he had consumed 6 x 440ml cans of [Bulleit] bourbon and shared a 750ml bottle of [Bulleit] bourbon with his friend. At this time he felt a little intoxicated, although they both decided to attend the Inglewood Hotel. Upon arriving at the Inglewood Hotel he has continued to consume alcohol and shared in 9 jugs of beer with his friend over about a 1 1/2 hour period. [The respondent] stated upon leaving the Hotel the current offences occurred. He claims he did not see the initial part of the altercation, although [he] saw his friend hit the victim with a middy glass and jumped or was pushed back. The victim has then raised his fists as if he was going to fight, and it was at this point [the respondent] got involved to protect his friend and to break up the fight. He readily conceded his actions were excessive … He stated he should have tried to resolve the situation without aggression in the first instance.
[The respondent] expressed regret for his involvement in the altercation and showed remorse for the injuries sustained by the victim. He stated he was very intoxicated at the time and was not thinking clearly, although in no way attempted to use this as a justification for his actions. He stated he thought he was doing a 'good' thing to help a friend, although it went too far and got out of hand.
The magistrate mentioned the respondent's personal circumstances. He was born on 28 March 1980 and was aged 29 years at the time of the offending. He had no criminal record, apart from a conviction in 2009 for disorderly behaviour in public for which a fine of $500 was imposed. The respondent is single and has no children. He ceased his formal education after completing year 11 at school. Generally, he has been employed on a full‑time basis in a variety of positions. Since 2006 he had worked for Greenpeace. In July 2009, he became a team leader. The respondent commenced drinking alcohol at the age of 13 years. He did not drink to excess until he was 22. His alcohol consumption has gradually increased. The respondent's usual drinking pattern at the time of the offending was to consume about 6 ‑ 8 beers. It was rare for him to engage in binge drinking.
His Honour read the complainant's victim impact statement. In the statement, the complainant says, relevantly:
When I was first attacked I initially started to fight back but when I became aware of all the blood running down my face, I froze. All I could think of was to protect myself and the girls I was with who were really upset by what they were seeing …
…
I felt out of whack and lost confidence in social situations. Having visible injuries and stitches made me feel vulnerable and strange as I did not really look like myself. I hoped that when the stitches came out and I started to look more like myself that I would start to relax a bit more. This in fact has not happened. I have very noticeable red and in places raised scarring around my right eye and down my left cheek. Now, when I see this in the mirror I get angry that someone could have done this to me. I need further plastic surgery for this …
I experience emotional ups and down, breathing more rapidly than usual and feeling okay to feeling down to being irritable. I thought this was wearing out with time but it's still happening more than is normal for me. I found myself being clumsy and less coordinated so for a few days I did not drive more than I had to. Initially I did not think that my sleeping had been affected but since the incident, I wake up in the middle of the night and can't get back to sleep which leaves me tired and irritable during the day.
My family relationships and friendships have been put under strain. They are trying to make sense and cope with my mood swings.
The magistrate spoke about 'community expectations', and what he thought their role was in determining the appropriate sentence:
As indicated earlier the maximum penalty that this summary court can impose for unlawful wounding is two years' imprisonment and a fine of $24,000. Within those parameters … judicial officers must exercise their discretion but this discretion has to be exercised in accordance with community expectations. I appreciate that community expectations are not always easy to determine but one very clear community expectation is that if someone smashes a glass or bottle into another person's face and causes [disfiguring] injuries, then that person must be dealt with by way of a prison sentence.
Sentences have two functions: a specific deterrence, and a general deterrence. A specific deterrence is of course the deterrence directed at the individual defendant. The general deterrence is directed at the community in general so that the general community is aware that as in this situation if one smashes a glass or bottle into another's face and causes [disfiguring] injuries, then that person will be sent to gaol. That is the purpose of a general deterrence and that is what the community expects, and it is the community expectation that must determine the judicial discretion.
Judicial officers don't have the discretion outside the scope of community expectations and if they do venture outside the scope of community expectations then it is the appellant [sic] court's duty to amend the penalty back to within the scope of community expectations, and even the appellant [sic] courts have the obligation to be guided by community expectations (ts 12).
His Honour decided that it was appropriate for him to deal with the matter summarily. Although the pre‑sentence report indicated that the respondent was a suitable candidate for a community based order, his Honour considered that the offence was 'far too serious' to be dealt with by way of a community based order and was 'clearly too serious' to attract merely a fine. A term of imprisonment was the only appropriate sentence (ts 13).
The magistrate found that there was a 'crucial' need for general deterrence in relation to offences involving 'glassing' because of 'the frequency with which these types of incidents are occurring' (ts 13).
His Honour gave consideration to the discount he should allow for the respondent's plea of guilty at the first opportunity and other mitigating factors. He said:
I feel that the only appropriate sentence is one of imprisonment, and as I think that this is the most serious example of such a case that can be dealt with summarily, that the starting point should be the maximum period of two years.
… [The respondent] pleaded guilty at the first or an early opportunity and [is] therefore entitled to a 25 per cent reduction which reduces that penalty to 18 months' imprisonment. I have read the statement of material facts which outline the circumstances of the attack including the fact that [the respondent] entered the fight when he saw his co‑defendant engage in a fight with the victim. I have read the pre‑sentence report which reveals [the respondent's] virtual clear record, his family background, his status as a single man, his education, employment and financial situation, health and substance abuse record and his concession that at the time he was very intoxicated.
I have also read his glowing references from his employment at Greenpeace which reflect his good character and remorse for this incident. I have also heard his counsel's submissions along those lines on his behalf. Nothing contained therein leads to the conclusion that a prison sentence is not appropriate and that there is any reason to reduce it further than the 18 months. Victims are entitled to look to the courts for justice. The victim impact statement makes it clear that the consequences upon him are far greater than pain and bleeding that occurred on the night of the attack. There is nothing mitigating in the victim impact statement for [the respondent].
The seriousness of the offence itself overrides all of the mitigating circumstance[s] and personal circumstances that may have arisen from the reports and references I have received on behalf of [the respondent] (ts 13 ‑ 14).
The magistrate's reasons for deciding that a term of imprisonment was the only appropriate sentence were these:
The circumstances of the assault that lead me to the conclusion that a prison sentence is the only appropriate sentence [are] the cowardly nature of this assault; it was two onto one; the fact that a weapon as distinct from a fist was used; the nature of the weapon used, namely, a glass and its potential to break and inflict serious disfiguring injuries upon the victim; the fact that in this case the impact was sufficiently hard to cause the glass to break on impact with the victim's face and inflict serious disfiguring injuries to the victim's face; and the impact of the injuries upon the life of the victim as indicated in the victim impact statement both physical and psychological and ongoing.
I think that the appropriate penalty is 18 months' imprisonment … [The respondent] … will be eligible for parole … (ts 14).
After referring to s 76 of the Sentencing Act 1995 (WA) and the reasons of Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, and considering afresh all of the facts and circumstances relevant to the sentencing disposition, his Honour concluded that the term of imprisonment should not be suspended.
The sentence took effect from the date of its imposition, namely, 11 March 2010.
Murray J's decision and reasoning
The respondent appealed against the magistrate's decision on three grounds. First, he alleged that the magistrate erred in law by placing such emphasis on general deterrence that other relevant sentencing considerations were not taken into account and, as a result, his Honour failed to give 'sufficient consideration' to non‑custodial sentencing options (ground 1). Secondly, he alleged that the magistrate erred in law by failing to take into account, or failing adequately to take into account, mitigating circumstances and sentencing standards, with the result that the sentence imposed was disproportionately long (ground 2). Thirdly, he alleged that the magistrate overlooked the fact that the respondent had been remanded in custody between the date of his arrest (23 November 2009) and the date he was granted bail (3 December 2009), a period of 11 days (ground 3).
Murray J published written reasons for decision: Tickner v Powell [2010] WASC 142.
His Honour dealt with grounds 1 and 2 together. He said that the magistrate's remarks about the significance of community expectations as 'limiting the exercise of the judicial discretion in relation to sentencing' disclosed error and, as a result, the magistrate's discretion had miscarried [18]. Later, his Honour said that 'the magistrate allowed what he perceived to be the community expectation to prevent him giving due weight to matters which were in mitigation of punishment' [28]. But he dismissed the argument that the magistrate had failed to have regard to mitigating circumstances [29]. His Honour's conclusion in relation to the magistrate's imposition of a sentence of imprisonment (as distinct from its suspension), and the length of the term, was this:
In the final analysis, I am unpersuaded that this was not a case where the seriousness of the offence could lead property [sic] to the conclusion, despite the mitigating circumstances, that the only appropriate punishment was the imposition of a sentence of imprisonment, and for the magistrate to fix the term of 18 months does not, in my view, of itself, demonstrate error by reason of the length of that term [31].
Murray J then gave attention to whether the term of imprisonment should have been suspended or not. He held that the magistrate's 'exercise of discretion miscarried as a result of the approach he took, which caused him to consider that suspension of the term he imposed was inappropriate' [36]. The 'approach' in question appears to relate to Murray J's view that the magistrate allowed his perception of community expectations to prevent him giving 'due weight' to mitigatory factors [28].
Murray J asserted that '[i]t seems that it was accepted that the blow, although struck deliberately, was not struck, for the purpose of using the glass as a weapon with the intention of causing harm to the victim, although harm was done' [10]. He returned to this point later in his reasons when he said:
[T]he applicant's intervention was on the spur of the moment, and although he deliberately inflicted the blow with force sufficient to break the glass in his hand, there was no evidence that he intended that the glass should break and inflict the harm which occurred [38].
His Honour then concluded:
The applicant was a young man of previously good character, performing well in his chosen field of employment, with no previous convictions, who had therefore never previously been punished by imprisonment for any offence. His prospects of rehabilitation were excellent if, as was the case, he was prepared to address his over-consumption of alcohol. The threat of activation of a suspended term of imprisonment would be a sufficiently punitive response by the court [39].
It was unnecessary, in the circumstances, for Murray J to deal with ground 3. He noted, however, the State's concession that there was no reason, if a sentence of imprisonment to be served immediately was to be imposed, that the sentence should not have been back‑dated to take account of the 11‑day period spent in custody on remand [24]. See s 87 of the Sentencing Act.
The State's grounds of appeal to this court
The State sought leave to appeal to this court on two grounds. On 2 August 2010, Mazza J granted leave to appeal on the original ground 2 and refused leave on the original ground 1.
The original ground 2 and its supporting particulars were poorly drafted. The ground alleged that Murray J erred in imposing a conditionally suspended imprisonment order in that the order was manifestly inadequate. The particulars to the ground were not, however, confined to allegations of implied error. They included an allegation of express error and an allegation in relation to the weight accorded to some sentencing considerations.
Also, the original grounds failed properly to reflect Murray J's role as an appellate judge. His Honour was hearing an appeal. It was necessary for him to identify a material error in the magistrate's exercise of the sentencing discretion before he could intervene and set aside the sentence. Murray J did not exercise a discretionary power until he came to re‑sentence the respondent, after he had set aside the magistrate's sentence.
At the hearing of the appeal, this court granted counsel for the State leave to rely on substituted grounds of appeal which properly reflected the case sought to be advanced by the State in its submissions. The respondent was not relevantly prejudiced by the restructuring of the grounds. The substituted grounds read:
1.The learned Appeal Judge erred in finding that ' … it was accepted that the blow, although struck deliberately, was not struck, for the purpose of using the glass as a weapon with the intention of causing harm to the victim, although harm was done' [10].
2.The learned Appeal Judge erred in finding that the learned sentencing Magistrate erred by imposing an immediate term of imprisonment.
Particulars
a)The seriousness of the offence and the circumstances in which it was committed, together with the need for general deterrence for offences of this nature, warranted an immediate term of imprisonment notwithstanding the antecedents of the offender and his prospects for rehabilitation.
Manifest inadequacy
A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing 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.
Inadequate weight
An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale [26]; Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
The suspension of a term of imprisonment
The principles relating to the suspension of a term of imprisonment are set out in my reasons in The State of Western Australia v Johnson [2009] WASCA 224 [67] ‑ [72] (Owen & Wheeler JJA agreeing).
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act. That is, a court is not permitted to impose a term of imprisonment to be served immediately unless that is the only appropriate sentencing option.
The factors to be considered when deciding whether or not to suspend a term of imprisonment include:
(a)the perceived seriousness and intrinsic character of the offence;
(b)whether there was any element of persistence;
(c)general deterrence;
(d)factors personal to the offender including mitigating circumstances;
(e)the need to demonstrate the community's condemnation of offences of the kind in question;
(f)the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and
(g)any reasons militating in favour of an exercise of mercy.
This list of factors is not, of course, exhaustive. See R v Liddington (1997) 18 WAR 394, 406 (Steytler J).
It must be emphasised that the discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
The present appeal: the maximum available penalty
At all material times, the maximum available penalty for the offence of unlawful wounding, contrary to s 301(1) of the Code, where the offence was not committed in circumstances of aggravation, has been imprisonment for 5 years. However, at all material times the maximum available summary conviction penalty, where the offence was not committed in circumstances of aggravation, has been imprisonment for 2 years and a fine of $24,000.
A magistrate may sentence an offender to a term which does not exceed the applicable jurisdictional limit even though any 'starting point' adopted in the course of deciding upon the term exceeds the applicable limit. See Wiltshire v Mafi [2010] WASCA 111 [24] ‑ [33] (Pullin & Buss JJA & Mazza J).
In the present case, the offence of unlawful wounding committed by the respondent was not committed in circumstances of aggravation.
The present appeal: the standards of sentencing customarily observed
In the present case, both counsel for the State and counsel for the respondent referred to Etrelezis v The Queen [2001] WASCA 327. The offender was convicted, after a trial, of doing grievous bodily harm to the complainant, contrary to s 297 of the Code. By s 297(1), any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years. The offence under s 297(1) is more serious than the offence of unlawful wounding, without any circumstances of aggravation, under s 301(1). Etrelezis is therefore not a comparable case. There are, however, observations by the Court of Criminal Appeal in Etrelezis which are, by analogy, of some relevance in sentencing a person for an offence against s 301(1).
The salient facts of Etrelezis were these. The offender was at a hotel. The complainant squeezed past a group of people and accidently bumped the offender, causing him to spill his drink onto a girl with whom he was having a conversation. There was an argument between the offender and the complainant. The complainant head‑butted the offender. The offender, in retaliation, punched the complainant in the eye with the hand that was holding his glass. The complainant required surgery for his eye. He had a full thickness laceration to his left upper eyelid which required stitching. The prognosis was that, subject to minor cosmetic surgery, he would not be left with any residual disability. The complainant was physically larger than the offender. He was more solid and taller. The verbal altercation between them lasted for about 20 seconds and then the complainant head‑butted the offender directly in his face.
The sentencing judge in Etrelezis imposed a sentence of 3 years' immediate imprisonment with eligibility for parole. The Court of Criminal Appeal allowed the offender's appeal on the ground that the original sentence was manifestly excessive. It ordered that, while the term of imprisonment should remain, it should be suspended for a period of 1 year. Etrelezis was decided before the introduction of the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (transitional provisions). Malcolm CJ (Wallwork & Templeman JJ agreeing) said that the offender had reacted 'instinctively' to the complainant's head-butt [45]. He said that it was not appropriate to attach to the actions of the offender 'the same degree of criminal responsibility as a person who deliberately shoved a glass directly into the face of another person' [50]. He added:
While it could not be characterised as an automatic reaction, it was in the nature of an instinctive reaction and, to that extent, somewhat understandable. This was a case in which grievous bodily harm was caused by a man who did not have any precise intent as was accepted by the Crown [50].
The offender had no relevant criminal record, was of prior good character and had very good personal antecedents.
Counsel for the State also referred to Stark v The State of Western Australia [2007] WASCA 44. The offender was convicted, after a trial in the District Court, of unlawful wounding, with intent to maim, disfigure, disable or do grievously bodily harm, contrary to s 294 of the Code. He was sentenced to 2 years' immediate imprisonment and was made eligible for parole. The maximum available penalty was 20 years' imprisonment. Wheeler JA dismissed the offender's application for leave to appeal against sentence. The offence under s 294 is significantly more serious than the offence of unlawful wounding, without any circumstances of aggravation, under s 301(1). Accordingly, the sentencing disposition in Stark is not comparable.
There appear to be six decisions, one of the Full Court of the Supreme Court and five of single judges of the Supreme Court, which have considered sentencing appeals in the context of offences against s 301(1) of the Code involving 'glassing'; that is, the use by the offender of a glass or bottle as a weapon, in or in the vicinity of licensed premises, unlawfully to wound the victim.
In Long v Mayger [2004] WASCA 41, the offender was convicted, after a trial, of one offence of unlawful wounding. The offender had been involved in a brawl at a tavern. The complainant was standing on the dance floor of the tavern talking to a small group of women. He was bumped from behind, causing him to hit the drink held by one of the women, which splashed into her face. This led to a fight between the complainant and the man who had bumped him, Tom Ferrier. Although others had attempted to separate them, the appellant intervened on Ferrier's behalf and, from a position behind and slightly to one side of the complainant, struck the complainant on the side of his face and the back of his head with a single blow from a beer bottle. The force of the blow smashed the bottle. The complainant suffered cuts to his face which required 40 stitches. Later he required plastic surgery to correct his facial disfiguration. The magistrate imposed a sentence of 11 months' immediate imprisonment, the appellant having already spent 1 month on remand. A parole eligibility order was made.
The Full Court of the Supreme Court allowed the offender's appeal. The court ordered that the term of imprisonment be suspended for a period of 2 years.
McKechnie J (Malcolm CJ agreeing) characterised the offence as 'grave'. He elaborated:
The use of a bottle or glass object in a fight carries a real risk of serious injury such as occurred in this case. For that reason a sentence of imprisonment will generally be appropriate and the Magistrate's decision to impose a sentence of imprisonment, notwithstanding the youth and prior good character of the appellant, cannot, in my respectful opinion, be faulted [83].
His Honour expressed the view that, apart from the particular circumstances of the offending in question, general deterrence required that 'courts deal firmly with young men who use glass objects as weapons' [88].
Although a term of imprisonment 'was not only open but inevitable' [88] in Long, McKechnie J decided that, for the following reasons, the magistrate should have suspended the term:
The seriousness of the offence is one issue to be taken into account. However, it must be measured against the circumstances of the appellant. The appellant was 18 at the time of the offence and of prior good character. Not only had he refrained from committing criminal offences, but he had actively pursued community service. As at 18 March 2003 he had nearly completed a course of training which by 28 October 2003 he had completed. He had good employment prospects. The offence itself, although deliberate, carried consequences well beyond what was intended. He appeared to have learned the consequences of drunken behaviour [89].
I will now examine the five relevant decisions of single judges of the Supreme Court, namely, Janerka v Bethell [2002] WASCA 198, Walker v Allen [2006] WASC 89, Duggan v Coelho [2009] WASC 372, Nguyen v Lassau [2010] WASC 240 and Scolaro v Shephard [No 2] [2010] WASC 271.
In Janerka, the offender pleaded guilty to one charge of unlawful wounding. McKechnie J summarised the material facts, as follows:
In the early hours of 29 January 2002, Mr Denniss was at Beaumaris Beach, Iluka. A little way apart, Mr Janerka and his girlfriend were sitting beside a small fire in the sand dunes. For some reason this attracted the attention of Mr Denniss who asked Mr Janerka to put the fire out. There was an exchange of words and the fire was kicked out, some of the sand being kicked at Mr Janerka and his girlfriend.
Apparently egged on by his girlfriend, Mr Janerka picked up an empty whisky bottle and approached Mr Denniss, asking if he could join their party. As he got close to him, he swung the bottle from behind his back and struck Mr Denniss to the face near the left eye. The injuries were serious and included lacerations to the right upper eyelid, left upper eyelid and left cheek; marked swelling around the left eye with evidence of ocular injury - manifested as a left corneal abrasion, left proptosis and left hyphaema (blood within the eye), together with a mild abrasion to the right cornea. There were multiple fractures around the left eye and evidence of bruising behind the eye. The time in hospital seemed to have been very unpleasant. Mr Denniss does not have clear vision in his left eye and it is not known whether he will recover normal vision.
After attacking Mr Denniss, Mr Janerka tried to flee but was restrained by others. On becoming aware of the nature of the injuries, he assisted in treating Mr Denniss until the ambulance arrived. He attended at Joondalup Detectives' office and made a full and complete confession in a video record of interview [1] ‑ [3].
The magistrate in Janerka sentenced the offender to a term of 8 months' immediate imprisonment. The sentence was discounted from 18 months to 8 months by reason of, amongst other things, the offender's plea of guilty, prior good record, age (he was 19 years) and other matters of mitigation. The offender lived with his parents, was a part‑time employee at K‑Mart and a student at Edith Cowan University studying engineering. Janerka was decided before the introduction of the transitional provisions.
McKechnie J dismissed the offender's appeal. His Honour held that it was open to the magistrate to conclude that, notwithstanding the offender's favourable personal antecedents, 'the offence was so serious that a term of imprisonment to be served immediately was warranted' [26]. McKechnie J arrived at this view on the basis of his acceptance of the proposition that the offender did not intend to hit the complainant's face but 'merely' intended 'to use the bottle and cause harm with its use' [21].
In Walker, the offender pleaded guilty in the Magistrates Court to one charge of unlawful wounding. He was sentenced to 9 months' immediate imprisonment. The material facts relating to the offending, as set out in McKechnie J's reasons, were these:
[T]he complainant was at the All Seasons Hotel (formerly the Mecure Hotel) in Karratha. While he was taking a bag out to a car he accidentally bumped the appellant who pulled him up and started talking to him. The complainant ignored him and kept trying to walk towards the exit. The appellant pulled him up again, so the complainant turned around and pushed his left shoulder into the appellant's left shoulder. As this happened, the appellant swung his right arm, with his glass still in his hand, towards the complainant's face hitting him in the left side of the face. The complainant punched the appellant a couple of times and he went to the ground. The complainant went to hospital and received treatment to a 5 centimetre cut to his face requiring six stitches. The appellant has no memory of the incident.
It appears from the plea in mitigation made by counsel before the Magistrate that following the incident the appellant was beaten up by a number of other people in the hotel. The prosecutor had indicated previously that while on the floor, in the course of the beating, the appellant had been kicked [4] ‑ [5].
McKechnie J was satisfied that it was open to the magistrate to conclude that the offence was of such seriousness that general deterrence required a term of imprisonment. His Honour observed, correctly in my respectful opinion:
Often Magistrates are in a better position than other judicial officers in discerning trends in crime. A bar fight may be one thing but the use of a glass to the side of the face raises the fight to a different level and requires strong intervention and a sentence of general deterrence [8].
Nevertheless, McKechnie J allowed the offender's appeal and ordered that the sentence of 9 months' imprisonment be suspended for a period of 7 months. His Honour said that the offender had a relatively minor record, had never been in prison previously, was remorseful and was in full‑time employment. His action against the complainant was 'unpremeditated' [15]. His Honour took into account the time the offender had spent in custody in setting the period of the suspension.
In Duggan, the offender pleaded guilty to one charge of unlawful wounding. The offender had been socialising with friends at a hotel. A man in the offender's group became involved in an argument with another man (the complainant) near the dance floor. The argument escalated to involve pushing and shoving. The offender intervened. He rugby‑tackled the complainant. They then separated and the offender walked outside. About 5 ‑ 10 minutes later, the offender returned to the premises, took a glass from another patron standing near the dance floor and walked up to the complainant. The complainant was standing with his back to the offender. The offender then struck the complainant to the left side of his head with the glass that he was holding. The complainant suffered three lacerations to his face in the vicinity of his left eye. The lacerations required five stitches. After the offender struck the complainant with the glass, there was further fighting in which the offender suffered head wounds.
The magistrate in Duggan sentenced the offender to a term of 18 months' immediate imprisonment. A parole eligibility order was made. The offender appealed to the Supreme Court. Hall J allowed his appeal. He held that the original sentence was manifestly excessive. He reasoned:
[G]iven that the maximum sentence available to the magistrate was one of two years and that the appellant entered a plea of guilty at the earliest stage, it does appear that the sentence imposed failed to take into account, or to adequately take into account, the value of that plea of guilty. To have reached a final sentence of 18 months the magistrate must have notionally considered a higher sentence which was then discounted to take into account the plea of guilty. Even if his Honour had considered that this offending was deserving of the maximum sentence available to him of two years, the sentence imposed of 18 months would not adequately give weight to any of the relevant mitigating circumstances and, in particular, the early plea of guilty. For this reason I am of the view that the sentence imposed manifests error [28].
Hall J set aside the magistrate's sentencing decision and re‑sentenced the offender. He took into account additional information and other material set out in an affidavit filed on behalf of the offender in the appeal. His Honour gave this summary of the further evidence:
These confirm that the appellant has been attending a psychologist for treatment of anger and alcohol problems on a regular basis. The psychologist has assessed the appellant as being cooperative and genuinely motivated to change his life. The appellant ceased drinking alcohol some months ago and has been prescribed, and is taking, anti-depressant medication. There is also information confirming that the appellant has commenced an alcohol treatment program at Holyoake. A letter from the appellant's medical practitioner confirms that he is currently suffering anxiety and a major depressive disorder but has been compliant with all suggested treatment and is highly motivated to improve his mental health and stay abstinent from alcohol. A letter from his employer confirms that he has been employed as a diesel mechanic for the last two years and works six days a week on regular shifts. There is also information confirming that the appellant pays child support for his son, which would no doubt be imperilled if he were to be imprisoned and lose his job. Finally, there are a number of letters from members of the appellant's family confirming that he is now residing with his mother and stepfather, has significantly changed his lifestyle and is supported by them [30].
Hall J decided that the further evidence 'reinforced' the appropriateness of a suspended term of imprisonment. He re‑sentenced the offender to a term of 12 months' imprisonment, to be suspended for 12 months, with programme and supervision requirements.
In Nguyen, the offender was convicted, on his plea of guilty, of one offence of unlawful wounding. Early one morning, the offender was with a group of friends at a night club. He was dancing. The offender and another man (the complainant) confronted each other on the dance floor. The offender pushed the complainant who responded by pushing him. The offender then threw an empty whiskey glass from a distance of about 1 m. The glass struck the complainant's scalp and caused a 6 cm laceration. The magistrate imposed a sentence of 8 months' immediate imprisonment.
The offender appealed to the Supreme Court. Allanson J held that the magistrate did not 'give adequate consideration to the option of suspending imprisonment' [14]. The basis for this conclusion was as follows:
Her Honour … had before her a pre-sentence report referring to the following factors. The applicant was 27 years old (he is now 28). He was born in Vietnam and immigrated to Australia at 9 years of age. His first language is Vietnamese. He ceased formal education half-way through year 10 under some degree of pressure from his family to cease his education and work full time. Since then he has worked in the family-owned market garden, and is currently employed full time in a family owned and operated fruit and vegetable store, working six days a week.
The applicant has a minor offending history, with his last appearance before the courts in 2004. There are no prior convictions for violence. He has no significant history of substance use, save for drinking alcohol to the point of intoxication. He acknowledged alcohol misuse as an emerging pattern and acknowledged its contribution to the events. The applicant was described as aware of the importance of acquiring skills to implement behavioural change, and is highly motivated to undertake the necessary intervention.
The applicant had admitted his conduct when first interviewed by police, and had pleaded guilty at the first opportunity. He did not attempt to attribute blame to the victim and had expressed a deep sense of shame and remorse [11] ‑ [13].
Allanson J re‑sentenced the offender to a term of 6 months and 1 days' imprisonment, suspended for 9 months. He arrived at this result after taking into account that the offender had served 10 weeks and 2 days in custody since he was originally sentenced. Also, since the offender had been admitted to bail, pending the hearing of the appeal, he had been in full‑time employment and had complied with his bail conditions. Also, he had been made the subject of a prohibition order under s 152E(2) of the Liquor Control Act 1988 (WA), which banned him from entering licensed premises for 5 years from 1 July 2010.
In Scolaro [No 2], the offender, a young woman, was convicted, after a trial in the Magistrates Court, of one offence of unlawful wounding. She was sentenced to 18 months' immediate imprisonment. The offender appealed to the Supreme Court against her conviction and sentence. Martin CJ dismissed the appeal against conviction but allowed the appeal against sentence. The appeal against sentence succeeded because some material errors of fact were made by the magistrate in sentencing the offender. The relevant facts, as found by the magistrate and corrected by Martin CJ on appeal, were as follows. The offender and the complainant, who was also a young woman, were at a nightclub in Northbridge late one evening and early the next morning. Before the events in question they were unknown to each other. Each of them had attended the nightclub with a group of friends. Both had been drinking alcohol but neither of them was intoxicated. There was a disagreement arising from an allegation that the complainant had taken a sip from the glass of either the offender or the offender's boyfriend while it was on the bar. An altercation ensued. During this altercation, the complainant was struck in the face with a heavy glass that had been held by the offender. The glass struck the complainant's face with such force that it broke and caused significant lacerations. She was taken to hospital and, eventually, treated by a plastic surgeon, who applied between 32 and 36 stitches, both internally and externally. Martin CJ found that the complainant initiated the physical exchange between the two women by throwing part of her drink upon the offender's back. Also, the complainant threw the balance of her drink at the offender before the offender propelled the glass into her face. Martin CJ re‑exercised the sentencing discretion as a result of the magistrate's errors of fact. His Honour substituted a sentence of 12 months' immediate imprisonment and made a parole eligibility order.
Sentencing and the prevalence of an offence
The factors to be taken into account in determining the sentence to be imposed on an offender include the prevalence of the offence.
The prevalence of an offence, either in a particular locality or in the community generally, when the offence for which the offender is to be sentenced was committed, should be reflected in the sentence by giving a greater relative weight to the achievement of general and, if appropriate, specific deterrence. See R v Peterson [1984] WAR 329, 332 (Burt CJ, Smith & Pidgeon JJ agreeing). Burt CJ explained:
That is not done by imposing an 'exemplary' sentence, so‑called, which is more severe than the nature of the offence and the circumstances of its commission in justice calls for, but by giving less weight to ‑ which is not to ignore ‑ mitigating factors which may be found within the antecedents of the prisoner. That results in a 'firming up' of the sentence for such an offence and results in a sentence which more closely fits the crime and a sentence which, if the offender thinks about it in advance, is in reason predictable and certain, each of those qualities being central to the idea of deterrence (332).
In R v Downie [1998] 2 VR 517, Callaway JA (Phillips CJ & Batt JA agreeing) made, relevantly, these observations as to the manner in which prevalence may be taken into account in sentencing (522):
[A] court should be sure that an offence is prevalent before weighting the instinctive synthesis in favour of general deterrence and giving less weight to mitigatory factors, as explained in such cases as R v Peterson [1984] WAR 329 at 332. Even if the judge is sure that an offence is prevalent or locally prevalent, an increased sentence is not inevitable. There may be countervailing factors of greater significance. See also the cautionary observations of Professor Ashworth, loc cit, McGarvie J in R v Bateman (unreported, Court of Criminal Appeal, 29 June 1977) at 17 ‑ 18 and Lloyd LJ (as Lord Lloyd of Berwick then was) in R v Masagh (1990) 12 Cr App R (S) 568 at 569 ‑ 70.
If the State wishes to submit that there should be harsher penalties for an offence on the ground of prevalence or increasing prevalence, it should place material before the sentencing court which establishes and explains the foundation in fact for the submission as to prevalence or increasing prevalence. See Director of Public Prosecutions v Duong [2006] VSCA 78 [19] (Warren CJ, Ashley JA agreeing); WCB v The Queen [2010] VSCA 230 [31] (Warren CJ & Redlich JA). The material may include, for example, statistics compiled by police or other law enforcement agencies or a schedule of previous comparable cases and sentences. See Curtis v Sidik [1999] NTSC 135; (1999) 119 A Crim R 1 in relation to the kind of information put before the sentencing judge in that case as to the increase in prevalence of people smuggling [12].
It may be that the multiplicity of previous comparable cases in relation to a specific offence or a particular kind of offending may persuade a sentencing court that the offence or kind of offending in question has become increasingly prevalent, and that the sentences previously imposed have not had an adequate deterrent effect. See R v Dowie [1989] Tas R 167, 185 ‑ 186.
It is not essential that 'due warning' be given before the prevailing standard of sentencing in relation to a particular offence or offending is increased on account of prevalence or increasing prevalence, but the absence of a 'due warning' is a factor to be taken into account in the sentencing disposition. See Yardley v Betts (1979) 22 SASR 108, 113 ‑ 114 (King CJ, Mitchell & Legoe JJ agreeing); Poyner v The Queen (1986) 66 ALR 264 (Gibbs CJ, Murphy, Wilson, Brennan & Deane JJ); Director of Public Prosecutions v Watson [2004] TASSC 54 [23] (Underwood J, Blow J agreeing generally).
Sentencing and community expectations
The sentence imposed by a court on an offender marks the community's disapproval of the offender's criminal behaviour. The sentencing process involves the public denunciation of the offending conduct and the reaffirmation of the community's fundamental values as embodied in the substantive criminal law. See Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [118] (Kirby J); WCB [35].
By s 6(1) of the Sentencing Act, a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the matters specified in s 6(2). A sentence that is commensurate with the seriousness of the offence will produce an outcome which is just as between the offender and the community.
In Peterson, Burt CJ referred to the apparent assumption that when an offence becomes prevalent or increasingly prevalent the community demands retribution, and they see increased punishment as being 'the sure way of reducing the number of such offences and even of persuading persons not to commit them at all' (332). His Honour expressed considerable reservations about the accuracy of this assumption. He then said that if the assumption were accurate then his response would be, as follows:
[T]he expectation exceeds the capacity of the criminal law as an instrument controlling human behaviour. That is not to say that the idea of deterrence is to be abandoned. It is and it remains an important, and some may say the most important, idea reflected in punishment particularly for offences such as robbery. But it is to say that criminal behaviour is very much the product of factors, and many factors, both personal and social, which are beyond the reach of any court and which have operated and which will continue to operate to produce anti‑social behaviour. The need for punishment must be accepted, but it must be accepted with a full appreciation of its limitation (332).
I respectfully agree with those observations.
In R v Nemer [2003] SASC 375, Doyle CJ (Prior & Vanstone JJ relevantly agreeing) made the following comments, with which I respectfully agree, about a sentencing judge's duty in the context of demands by the public (or a section of the public) for retribution:
The courts administer justice on behalf of the community. But they administer justice according to law. The sentencing process is governed by the Sentencing Act and other relevant laws. A judge cannot simply impose the sentence that the judge would like to impose, or that the judge thinks would satisfy the public. To do either thing would be contrary to law.
The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case [13] ‑ [14].
Recently, community expectations in relation to sentencing received detailed consideration by the Court of Appeal of Victoria in WCB.
As Warren CJ and Redlich JA noted in WCB, the community is very poorly informed about most sentences that are imposed [16]. Their Honours said:
Every day many sentences are handed down across the Magistrates', County and Supreme Courts. Only a fraction of these are reported. The Sentencing Advisory Council found that the media reports selectively, choosing stories with the aim of entertaining more than informing, focussing on the unusual, the dramatic, and the violent. The view has been expressed in the United States that economic factors which encourage entertainment increasingly determine the style and content of crime reporting in both television and the print media at the expense of the traditional journalistic criteria of newsworthiness.
The Sentencing Advisory Council also found that the community has very little accurate knowledge of crime and the criminal justice system. Of the cases that are reported, a very small number are newsworthy only because they are considered 'extreme' in the sense that they appear on their face to be unusually lenient or stern. Though these sentences are very few by comparison with the large number of sentences that are imposed each year, and about which no criticism could legitimately be made, the bulk of sentences are unknown to the community at large. Whilst the majority of those sentences are concerned with the most commonly committed crimes they receive no public attention or focus. The consequence of all this is the risk of a communal perception that the abnormal sentence is the norm. Too often when a particular case is discussed in the press the mitigating features of the case that led the court to impose the sentence are not identified. Hence there can be no informed public discussion [16] ‑ [17]. (footnotes omitted)
Further, as their Honours noted in WCB, there is a widely held (and erroneous) perception within the community that, in general, sentences imposed by the courts are too lenient [20]. Their Honours elaborated:
In 2008 the Council summarised overseas and Australian research which shows that a combination of the public underestimating the severity of sentencing and over-estimating the severity of offending, builds a grossly inaccurate picture that has had serious implications for levels of public confidence in the criminal justice system.
The 2006 paper found that in 'the abstract the public thinks sentences are too lenient', and that people have 'very little accurate knowledge of crime and the criminal justice system', such that the mass media is 'the primary source of information' on those subjects. Selective publicity creates an unwarranted loss of confidence in the administration of criminal justice. Worse still, such publicity undermines the principle of deterrence. It creates the risk that offending will increase, because of the false perception that offenders will not be punished. None of this is intended to suggest that there should not be public discussion in the media about individual cases. The public have a right to criticise and hear the criticism of others through the media. That is a legitimate and important function of the media. But it should be informed and balanced discussion [22] ‑ [23]. (footnotes omitted)
The seriousness with which the community regards an offence is reflected by the Parliament in the maximum available penalty, as amended from time to time. Also, the seriousness with which the community regards particular anti-social behaviour may be reflected by the Parliament in the creation of a new offence. See R vJurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 223 (Spigelman CJ, Wood CJ at CL & BM James & Adams JJ agreeing).
The courts must take into account the seriousness with which the community regards an offence or particular anti‑social behaviour as reflected in Parliamentary enactments; notably, by taking into account the maximum available penalty, and any increases in it, and any admissible extrinsic evidence in relation to the creation of an offence or any increases in the maximum available penalty.
Also, the courts may take into consideration, in a general way, community attitudes to particular types of crime, and community concerns about the prevalence or increasing prevalence of particular kinds of offending, if the existence of these attitudes or concerns is able reliably to be established and the attitudes or concerns are reasonable and properly informed. For example, community attitudes to particular types of crime may be inferred from:
(a)the nature of the criminal conduct in question and the extent to which it departs from generally accepted norms of behaviour (for example, the sexual abuse of children); and
(b)the general experience of the courts, derived from expert and other evidence, in relation to the social and economic damage caused by certain types of crime (for example, commercial drug trafficking).
Obviously, this is not an exhaustive list.
Sometimes a sentencing court refers to community expectations in the course of expounding upon the egregiousness of the transgression by the offender against the community's fundamental values. The notion of community expectations has also been employed by appellate courts, in the context of State or Crown appeals against sentence, in formulating the question of whether the sentence imposed at first instance was so disproportionate to the seriousness of the offence as to 'shock the public conscience'. See R v Clarke [1996] 2 VR 520, 522 (Charles JA, Winneke P & Hayne JA agreeing). Also, sentencing courts refer occasionally to community expectations to denote the importance of general deterrence in relation to a particular offence or kind of offending.
The prevalence of 'glassing' in Western Australia
At the hearing of this appeal, the court raised with counsel for the State the absence of any evidence as to the prevalence or increasing prevalence of 'glassing' in Western Australia. The court granted the State leave to file and serve evidence on this issue after the hearing of the appeal and also granted both parties leave to make supplementary written submissions concerning any evidence adduced on behalf of the State.
The State filed and served an affidavit sworn 14 September 2010 by Andrew Atkinson, an intelligence analyst with the Western Australian police. Mr Atkinson is currently attached to the Licensing Enforcement Division (LED). In his affidavit, Mr Atkinson deposes, relevantly:
4.LED is involved in the collation of statistics relating to the occurrence of 'glassing' incidents since 1 January 2010. This is done by conducting regular searches of the WAPOL Incident Management System (IMS), the results of which are then recorded in an Excel Spreadsheet maintained and verified by LED.
5.At this time there is no specific recording of 'glassing' incidents, other than on the IMS which needs to be manually searched. The search results are then manually recorded on an Excel spreadsheet. IMS has no automated search mechanism to specifically search for occurrences of 'glassing' incidents. Therefore, it is not possible to electronically search records to determine the occurrence of 'glassing' incidents over the years previous to 2010. The available statistics record the type of offence with reference to the Criminal Code and not whether the weapon used was a glass.
6.A 'glassing' incident is considered to be one in which a bottle or glass is used as a weapon within, or within the immediate vicinity, of a licensed premise.
7.On 11 August 2010, I checked each incident collated in the Excel spreadsheet against its corresponding record in IMS. This ensured that every incident collated prior to my arrival at LED was consistent with the definition of a 'glassing' incident.
8.My research confirms that, during the period 1 January 2010 to 10 August 2010, a total of 67 'glassing' incidents have been recorded within IMS.
9.I estimate that to manually undertake the search of WAPoL IMS records for previous years to determine the number of 'glassing' cases would take 100 ‑ 200 hours of manual search time to determine each year's figures.
In summary, the statistics compiled by the Western Australian police reveal that between 1 January 2010 and 10 August 2010, there were 67 glassing incidents in this State. There are no readily available statistics as to whether this represents a material increase in the prevalence of glassing. The precise circumstances in which each glassing occurred are unknown. However, 67 incidents of this kind of assault within a little over seven months from 1 January 2010 is cause for considerable concern.
The respondent did not object to the admissibility of Mr Atkinson's affidavit. It was, however, submitted on his behalf that the information in the affidavit was 'not helpful'. In my opinion, the information was of assistance to the extent that it revealed, in general terms, that a substantial number of glassing incidents have occurred this year in Western Australia.
The merits of ground 1
Ground 1 asserts that Murray J erred in finding that '[it] seems that it was accepted that the blow, although struck deliberately, was not struck, for the purpose of using the glass as a weapon with the intention of causing harm to the victim, although harm was done' [10].
This finding must be read with his Honour's further finding that 'although [the respondent] deliberately inflicted the blow with force sufficient to break the glass in his hand, there was no evidence that he intended that the glass should break and inflict the harm which occurred' [38].
I am satisfied that Murray J erred, with respect, as alleged in ground 1. My reasons are as follows.
First, the prosecutor said, in the statement of material facts he read upon the respondent pleading guilty in the Magistrates Court on 20 January 2010, that the respondent had run to the complainant with a glass in his right hand and had smashed the glass into the right side of the complainant's face (20 January 2010: ts 2). This statement was not contested by the respondent's counsel at the sentencing hearing before the magistrate (ts 2 ‑ 5). The author of the pre‑sentence report noted that the respondent was 'afforded the opportunity to read the Police Statement of Material Facts, with which he agreed'. The respondent's counsel did not contradict this assertion at the sentencing hearing.
Secondly, the magistrate made a finding, consistent with the statement of material facts, that the respondent 'ran to the complainant with a glass in his right hand and smashed the glass into the right side of the complainant's face' (ts 6). This finding of fact was not challenged by the respondent in his grounds of appeal before Murray J or in submissions before this court.
Thirdly, the only reasonable inference open on the facts as found by the magistrate, including:
(a)the finding set out at [106] above;
(b)the force of the blow and the shattering of the glass;
(c)the nature and extent of the injuries inflicted on the complainant; and
(d)the damage to the respondent's right hand, for which he sought medical treatment,
is that the respondent intentionally used the glass as a weapon, and intentionally used it to cause harm to the complainant.
Fourthly, although the only reasonable inference open is that the respondent intentionally used the glass as a weapon, and intentionally used it to cause harm to the complainant, there was no evidence that the respondent intended that the glass should break or that he intended to cause harm to the degree actually inflicted.
Fifthly, although the respondent was charged with and pleaded guilty to the offence of unlawful wounding under s 301(1), and not the offence of unlawful wounding with intent to maim, disfigure or disable any person under s 294(1), the magistrate was entitled to sentence the respondent, as he evidently did, on the basis that he had intentionally used the glass as a weapon and had intentionally used it to inflict harm (although not harm to the degree actually inflicted). These matters were relevant in assessing the seriousness of the offending, even though they were not elements of the offence.
Ground 1 has been made out.
The merits of ground 2
Ground 2 asserts that Murray J erred in finding that the magistrate erred by imposing a term of immediate imprisonment.
Murray J appears to have identified two errors in the magistrate's decision. The first error concerned the magistrate's remarks about the significance of community expectations in the exercise of the sentencing discretion [18], [28]. The second (and related) error was that the magistrate allowed his perception of community expectations to prevent him from giving 'due weight' to mitigatory factors and, as a result, the magistrate held, erroneously, that an immediate term of imprisonment was the only appropriate sentencing option [28], [36] ‑ [40].
The magistrate said in relation to community expectations and their impact on the sentencing process, relevantly:
(a)The sentencing discretion must be exercised 'in accordance with community expectations' (ts 12).
(b)General deterrence 'is directed at the community in general so that the general community is aware that as in this situation if one smashes a glass or bottle into another's face and causes disfigure [sic] injuries, then that person will be sent to gaol. That is the purpose of a general deterrence and that is what the community expects, and it is the community expectation that must determine the judicial discretion' (ts 12).
(c)Judicial officers do not have 'the discretion outside the scope of community expectations and if they do venture outside the scope of community expectations then it is the appellant [sic] court's duty to amend the penalty back to within the scope of community expectations' (ts 12).
In my opinion, the magistrate made errors in relation to his understanding of the relevance and application of community expectations in the sentencing process. He was in error in that community expectations (as I have explained them and their relevance at [87] ‑ [97] above) do not, in a particular case, 'determine' the manner in which the sentencing discretion is to be exercised and, although community expectations have or may have a role in the sentencing process (see [94] ‑ [97] above), they do not, in any circumstances, fetter or control the sentencing court's discretionary exercise of power. These errors enlivened Murray J's discretion to intervene and, if appropriate, to impose a different sentence. The magistrate's comments about community expectations were not merely a reference to the importance of general deterrence in the context of glassing incidents.
I should emphasise that the errors in the magistrate's decision which I have identified are express errors. At one point in Murray J's reasons he appears, at least on one view, to suggest that the magistrate made an appealable error by failing to give 'due weight' to matters which were in mitigation of punishment [28]. Compare, however, Murray J's reasons at [18] which suggest that his Honour found an express error in the magistrate's reasons. As I have mentioned, a complaint about the weight attributed by a sentencing court to a relevant sentencing factor does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
By s 14(2) of the Criminal Appeals Act, despite the magistrate's errors, Murray J was empowered to dismiss the respondent's appeal if he considered that no substantial miscarriage of justice had occurred. I consider that if, despite the magistrate's errors, a different sentence should not have been imposed, then no substantial miscarriage of justice, within s 14(2), would have occurred, and the respondent's appeal should have been dismissed.
In my opinion, Murray J erred, with respect, in allowing the respondent's appeal and re‑sentencing him. He should have held that, despite the magistrate's errors, a different sentence should not have been imposed and, in consequence, he should have dismissed the appeal under s 14(2). My reasons for this conclusion are these.
First, as I have mentioned, the only reasonable inference open is that the respondent intentionally used the glass as a weapon and intentionally used it to harm the respondent (even though he did not intend to cause harm to the degree actually inflicted).
Secondly, the glass was used deliberately against a vulnerable part of the human body, namely, the face. The nature and extent of the injuries which a victim will suffer as a result of a glassing attack are unpredictable. The reasonably foreseeable potential consequences include the loss of sight in an eye. Although this potential consequence did not, fortunately, eventuate in the present case, the complainant did suffer serious and disfiguring injuries.
Thirdly, as the magistrate found, the attack on the complainant was cowardly (involving two men against one), and the respondent used sufficient force to cause the glass to shatter upon impact with the complainant's face.
Fourthly, the respondent's decision to intervene in the dispute between the complainant and the co‑accused is not properly to be characterised as having been made 'on the spur of the moment'. The complainant had left the hotel. He was followed by the co‑accused. The respondent then left the hotel with a glass. After seeing the complainant prepare to defend himself with his fists after he was assaulted by the co‑accused, the respondent ran up to the complainant and smashed the glass into the right side of his face. This was not, on any view, a defensive action. There was no reasonable explanation or justification (in any relevant sense) for his behaviour.
Fifthly, the complainant did not provoke (in any relevant sense) the respondent's attack on him. The respondent did not react (instinctively or at all) to any assault by or insult from the complainant.
Sixthly, the magistrate's finding that there was a 'crucial' need for general deterrence in relation to glassing offences because of the 'frequency' with which they are occurring (ts 13) deserves respect. His Honour is a very experienced magistrate and he was well‑placed to make an assessment about frequency in the ordinary course of his judicial work. The statistics provided to this court in Mr Atkinson's affidavit confirm that the frequency of glassing attacks is significant. General deterrence must be given increased weight.
Seventhly, although a suspended sentence is a sentence of imprisonment, and can operate as a general deterrent, it has less weight than an actual custodial term. See Curtis [25].
Eighthly, 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.
Ninthly, for the reasons I have set out at [118] ‑ [125] above, and having regard to the maximum available penalty and all other relevant sentencing considerations (including the absence of a 'due warning' and the respondent's early plea of guilty, evident remorse, progress towards rehabilitation, unlikelihood of re‑offending and generally good personal antecedents), a term of imprisonment to be served immediately was the only appropriate sentencing option. The sentence imposed by the magistrate was within the range of a sound exercise of discretion.
Ground 2 has been made out.
The result of the appeal and the re‑sentencing of the respondent
The appeal should be allowed and Murray J's sentencing decision should be set aside. This court has the materials necessary to re‑sentence the respondent.
Although, for the reasons I have given, the sentence imposed by the magistrate (18 months' immediate imprisonment) was within the range of a sound exercise of discretion, and Murray J should have found that no substantial miscarriage of justice had occurred as a result of the magistrate's errors in relation to community expectations, events which have occurred since Murray J re‑sentenced the respondent must be taken into account in determining the manner in which this court should re‑sentence the respondent.
As I have mentioned, the respondent spent 3 months and 11 days in custody before Murray J allowed his appeal against the magistrate's decision. On 11 June 2010, Murray J suspended the term of imprisonment for 18 months and imposed supervision and programme requirements. Counsel for the respondent informed this court that the respondent has been 'fully compliant' with these requirements. Also, counsel said that the respondent has been working as a mobile telephone sales person, has entered into a lease of premises and has been made the subject of a prohibition order under s 152E(2) of the Liquor Control Act which bans him from entering licensed premises for five years. Counsel for the State did not object to or contest the accuracy of the information provided by counsel for the respondent.
The seriousness of the offending, the impact on the complainant, the prevalence of glassing attacks and the need for general deterrence require the re‑imposition of a term of imprisonment. Despite the presence of various mitigating factors (see [33], [126] above), the considerations I have mentioned which require the re‑imposition of a term of imprisonment also demand that the term be served immediately. No other sentencing option is open.
I would impose a sentence of 15 months' immediate imprisonment, with eligibility for parole. The sentence should be taken to have taken effect on the date which is 3 months and 11 days before the date on which this court re‑sentences the respondent. See s 41(3)(c) of the Criminal Appeals Act. The back‑dating of the new sentence will give the respondent credit for the time he has already spent in custody in respect of the offence in question.
I would reduce the length of the term from 18 months to 15 months on account of the events which have occurred since Murray J allowed the respondent's appeal on 11 June 2010; most importantly, on account of the supervision and programme requirements which have bound the respondent and with which he has complied.
The respondent will be eligible for release on parole upon having served 7 1/2 months calculated from the date of commencement of the new sentence.
Postscript
After this appeal was heard, the respondent's co‑accused (Jacob Stone) was tried in the Magistrates Court on a charge of unlawful wounding in relation to the complainant. He was found not guilty of that charge but was convicted of being an accessory after the fact in relation to the respondent's offending. The co‑accused was fined $2,000. The outcome of the proceedings against the co‑accused does not relevantly affect this appeal or the appropriate sentencing disposition. Neither of the parties suggested otherwise.
MAZZA J: I agree with McLure P.
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