Quigley (A Practitioner) v The Legal Practitioners Complaints Committee - [2003] WASCA 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LIM -v- THE QUEEN [2002] WASCA 228

CORAM: ANDERSON J
PARKER J
TEMPLEMAN J

HEARD: 17 JULY 2002

DELIVERED : 17 JULY 2002

FILE NO/S: CCA 83 of 2002

BETWEEN: YENNY LIM
Applicant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 84 of 2002

BETWEEN :DEVI JAYALAKSANA v THE QUEEN

FILE NO/S :CCA 93 of 2002

BETWEEN :REYNALDO AKINO v THE QUEEN

Catchwords:

Criminal law and procedure - Appeal against sentence - Whether sentence of imprisonment should have been suspended

Legislation:

Sentencing Act 1995 (WA), s 39

Result:

Appeal allowed
Sentence varied

Category: B

Representation:

CCA 83 of 2002

Counsel:

Applicant: Mr J B Singleton QC & Mr R W H Tan
Respondent: Mr D Dempster

Solicitors:

Applicant: Tan & Tan
Respondent: State Director of Public Prosecutions

CCA 84 of 2002

Counsel:

Mr B J Singleton QC & Mr R W H Tan

Solicitors:

Tan & Tan

CCA 93 of 2002

Counsel:

Mr P R Eaton

Solicitors:

Chris Baker & Associates

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

Kilner v The Queen [1999] WASCA 189

Case(s) also cited:

Langridge v The Queen (1996) 17 WAR 346
Lauritsen v The Queen [2000] WASCA 203
Lowndes v The Queen (1999) 195 CLR 665
Miller v The Queen [1999] WASCA 66
R v Morrison [1999] 1 QD R 397
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] VR 359
R v Wong (1995) 16 WAR 219

TEMPLEMAN J: The Court has before it three applications for leave to appeal against the sentences imposed upon the offenders by Chief Judge Hammond in the District Court on 8 May this year. The offenders were charged jointly on indictment, that on 3 March 2002 at Rivervale, while in the place of the complainant, and without his consent, they committed the offence of assault occasioning bodily harm. The indictment also alleges that the offenders were in company with each other, that the relevant place was ordinarily used for human habitation, and further, that on the same date and at the same place the offenders unlawfully assaulted the complainant and thereby did him bodily harm.
Mr Singleton QC, who appears for two of the offenders, Ms Lim and Mr Jayalaksana, described the circumstances leading up to the offence as, as he put it, much ado about nothing. I will adopt Mr Singleton's summary, which I think adequately describes the circumstances, and they are these: Ms Lim, who was from Indonesia but was living in Perth, was contemplating attending college in Los Angeles in the United States.
Ms Lim had met the complainant previously and she knew that he was living in Los Angeles. She contacted him when she went to visit the college she was thinking of attending. According to Ms Lim, the complainant offended her in some way by making advances which were too affectionate. The result of that was that Ms Lim went home to Perth sooner than she would otherwise have done.
A few days before 3 March, the date on which the offences were committed, Ms Lim came across the complainant with another girl. The other girl was a friend, apparently, of Mr Akino, one of the co-offenders, in whom Mr Akino had a particular interest. A few days later, Mr Akino told Ms Lim that the complainant had been saying that it was Ms Lim who had been pursuing him and not the other way around. This apparently upset Ms Lim.
Mr Akino then prevailed on Ms Lim and Mr Jayalaksana to confront the complainant and to obtain from him an apology to Ms Lim. Mr Akino apparently wanted to embarrass the complainant in the eyes of the other girl, to Mr Akino's advantage.
At about 10 pm on the evening of 3 March 2002, the offenders went to the motel in Rivervale where the complainant was staying. That was the place ordinarily used for human habitation referred to in the indictment. There is no doubt, despite the fact that it was the complainant's temporary place of residence, that it was a place ordinarily used for human habitation.
The three offenders, as I have said, went to the motel. They went in company with, it seems, three others, one of whom became a co‑offender, but he was only 17 years old and he was dealt with subsequently in the Children's Court. The other two apparently took no part in the offence.
It seems that Ms Lim and Mr Jayalaksana went into the hotel room, entered against the will of the complainant. Mr Akino stayed outside at least temporarily. The door was closed. Mr Akino, wondered what was going on inside the motel room. He waited for some time and then went in. He knocked on the door and was apparently admitted by Ms Lim.
The assault on the complainant was then in progress, there having been some slapping and hitting of the complainant by Ms Lim and Mr Jayalaksana. Mr Akino joined in. There is some dispute about the way in which the assault was carried out, and there has been some attempt, it seems on the part of Ms Lim, to change her story. I say that in the sense that initially in the statement of facts to which Ms Lim apparently subscribed, it was said that she had kicked the complainant while he was on the floor. But she now wishes to say that she did not kick the complainant, but merely moved his head out of the way of the door with her foot so that the door could be closed when she left.
I say at once that I do not myself think that these differences and contradictions are of any great consequence, nor did the Judge below think they were of any great consequence. The fact is, I think, that the three offenders were co‑offenders in the sense, to put it shortly, that they were in it together. They each played different parts in the assault, but they nevertheless should be treated in the eyes of the law as having been involved equally.
It is also the fact that the assault left the complainant with some injuries to his face and head which were the subject of some independent medical reports.
In particular there is a report from Dr Rippey who examined the complainant at the emergency department of Sir Charles Gairdner Hospital at 11.30 pm in the evening of 3 March. The doctor said that on examination of the complainant he had a large amount of bruising and bleeding around his face, and two lacerations on his lower lip. He also had a bruised nose and a tender left side of the face. The complainant's lacerations were sutured and he was discharged with analgesia.
The doctor said in his opinion the injuries were not of a serious nature: They were not likely to endanger life, nor were they likely to cause any permanent injury to health.
There was also a report from a Dr Hardisiswo, a plastic surgeon and reconstructive specialist who practises in Indonesia. He examined the complainant on 18 March 2002, some 2 weeks or so after the offences had been committed. The doctor said he had had the complainant under his treatment since that date; that he had two scars under his lips and scars between eyebrows and the shapes of his lips, as the doctor said, "are terribly deformed." The doctor recommended plastic surgery and laser resurfacing.
There was evidence also from the Sir Charles Gairdner Hospital of a medical imaging report which had been produced on 4 March, the day after the offences were committed. The relevance of that report is that it showed some damage to one of the complainant's teeth. That is confirmed in a dental report from a dentist who also practises in Indonesia who said that one of the complainant's front middle teeth had been broken and that it was going to have to be replaced with porcelain.
I mention these reports because they are all independent reports. Mr Eaton, who appears today for Mr Akino, has suggested that there were disparities between the various medical reports. In my view there were no disparities. But in any event the reports were not disputed before the sentencing Judge: Nor has any basis been provided to this Court for disputing those medical reports now.
The applicants all pleaded guilty at the first opportunity before a Magistrate on the fast‑track system. They came before Chief Judge Hammond on 3 May for sentencing. I turn then to summarise the proceedings before the learned Chief Judge.
The proceedings commenced after the formal arraignment, by the prosecutor outlining the facts to the learned Judge as the Crown saw them. It is not necessary now to recite the facts as they were then recited.
The offenders were all represented by a senior barrister who then addressed his Honour. Counsel told his Honour that the facts the prosecutor had outlined were the facts prepared initially by the police. However, counsel said, he had handed to the Court a statement which had been given to the arresting officer with which he agreed, which differed from the statement given by the prosecutor. Counsel pointed out one important difference, as he saw it; namely, that the facts as outlined by the prosecutor suggested that all the offenders were at the door of the motel at the start, whereas that was not the case. As was disclosed in the statement which counsel handed up, Mr Akino did not enter the room at the outset but went to join the others later.
There was then a reference by counsel to the victim impact statement which the complainant had produced. Counsel suggested that this indicated the complainant was prone to gross exaggeration. Pausing there, I can say that in my view the victim impact statement does contain a considerable amount of exaggeration. That is a view which I think was shared clearly by the learned sentencing Judge, and I will come to that in a moment.
Counsel for the offenders referred to pre‑sentence reports which had been prepared for each of them. Counsel told his Honour that the reports indicated the situation as he put it; and that this was a one-off event which would never happen again. Counsel said the offenders were students in this country. Pausing there, that is true of two of them, not of the third who had been a student. Counsel said the offenders would be returning elsewhere and although this was a serious offence the possibility of a spent conviction should perhaps not be overlooked.
Pausing there, it is, I think, common ground between Mr Singleton and Mr Eaton, and rightly so, that it would have been quite inappropriate for spent conviction orders to be made in this case having regard to the nature of the offences.
Counsel did not himself refer to the question of suspension of the sentence but the prosecutor did refer to it. In any event it seems to me that that is a matter which the learned sentencing Judge would have had in his mind whether or not it had been referred to. That is because s 39 of the Sentencing Act 1995 (WA), which is in the forefront of the mind of all judges who have to sentence offenders, specifically requires the Court to consider in the hierarchy of available sentences whether a sentence of suspended imprisonment should be imposed. That is a matter which must be considered before the Court goes on to consider whether a term of immediate imprisonment is required.
To continue with the events before Chief Judge Hammond: There was reference to the medical reports by the prosecutor and also to the circumstances of the offence. The prosecutor then said that in relation to a suspended sentence he could make submissions if his Honour wished it.
A little later the prosecutor was invited by his Honour to deal with that matter. The prosecutor did so by saying that the offenders were young, that from the pre‑sentence report and from all appearances they seemed to be remorseful for their conduct: But the prosecutor pointed out to his Honour that when considering the appropriateness of a suspended sentence it was important to have regard to the perceived seriousness and also the intrinsic character of the offences.
The crown maintained, the prosecutor said, that this was a vicious, prolonged and cowardly attack. The prosecutor explained why that was so. He submitted that these factors excluded the possibility of a suspended sentence. At that point his Honour said that the issues were too complex to dispose of then: And that he proposed to remand the accused for some 5 days for sentence.
His Honour sat again on 8 May when, without hearing any further submissions, he proceeded to sentence. His Honour outlined the facts as read to the Court. He went on to say that it was necessary to consider very carefully the objective facts of the incident where these three people and others, without warning, confronted the complainant in his unit at the motel. His Honour then said:
"Leaving to one side any differences in detail, the essential facts are that these three laid into the complainant quite savagely and repeatedly. It is not said they used weapons but the complainant did receive repeated blows to the person and finally a kick from the offender Yenny Lim."
Pausing there, it seems to me, with respect, that his Honour was conscious of the differences which had been identified by counsel for the accused in the sense that the statement which he had handed up, as I have already said, differed in some respects from the facts as recited by the Crown. But clearly his Honour did not regard the differences as significant and, as I have already said, neither do I.
His Honour then went on to deal with the medical reports. He quoted extracts, which I have quoted, from Dr Rippey's report and from the report of the plastic surgeon Dr Hardisiswo. His Honour referred to the victim impact statement which he had before him but, as he said, he had endeavoured to make his assessment of the situation from the objective medical reports. In other words, his Honour did not place any great weight, if any weight, on the victim impact statement.
His Honour then turned to the personal circumstances of the offenders which he dealt with very briefly. His Honour then said, and I will quote the following paragraph in full because this is the essence of the sentence:
"I have thought at great length about this matter. I am conscious of the prior good records of these people and I am also conscious, and must be, of the severity of the attack that they jointly mounted on the unfortunate complainant. There is, I regret to say, in my eventual determination no way that a sentence of imprisonment to be served immediately can be avoided. The actions of these accused persons went far beyond any limit the law could tolerate. They cannot be dealt with, in my view, otherwise than by the imposition of a term of imprisonment."
His Honour then went on to say that but for the plea of guilty on the fast-track system the accused would have been given sentences of 2 years' imprisonment, but because of the plea of guilty, etcetera, that had been reduced to a term of 15 months on each count, to be served concurrently.
It is conceded by Mr Singleton QC that the sentence of 15 months' imprisonment was within the discretion of the learned sentencing Judge if a term of immediate imprisonment was to be imposed. In my view that concession is made correctly.
Mr Singleton's principal submission is that the sentence should have been suspended. Mr Eaton, while also submitting that the sentence should have been suspended, submits also that the sentencing discretion miscarried because the Judge failed to resolve disputed questions of fact. As I have already indicated, I do not accept that submission for two reasons: First, because I do not think that as far as the facts were disputed, there was any significance in the inconsistencies or the areas of disputation. I say that in relation to the facts surrounding the offences themselves.
In relation to the medical evidence, as I have already said, there was no dispute at all before the learned sentencing Judge and there is no basis now for disputing the medical evidence.
I digress for a moment to say that both counsel have been critical of the conduct of the barrister who represented the offenders before the learned sentencing Judge. Both counsel have been critical of the brevity of the submissions in mitigation made by counsel.
As, I have already said, counsel is an experienced criminal barrister. He placed all the relevant material before the learned sentencing Judge: He drew attention to such disputes as there were in the relevant circumstances and he had ensured that pre‑sentence reports were placed before his Honour. I have read the pre‑sentence reports. They are in standard form. They are comprehensive and contain all the relevant material that his Honour would have required in order to exercise the sentencing discretion in a proper manner.
I accept that counsel's submissions before the learned sentencing Judge were economical but I would hesitate to criticise a barrister for economy in submissions.
The learned Judge had a very difficult sentencing exercise to perform. On the one hand he had young offenders of good character who were pursuing worthwhile studies or in one case an occupation, having completed his studies. These offenders, in a naive and foolish way, committed serious offences which called for an appropriate punishment.
One of the questions which his Honour needed to address, as I have already said, by reference to the Sentencing Act, was the question of suspension. Mr Dempster who appears today for the Crown has drawn the Court's attention to a decision of this Court in Kilner v The Queen [1999] WASCA 189, in which Ipp J, with whom the other members of the Court agreed, said at par 12:
"In determining whether a sentence of imprisonment should be suspended the Court should first determine whether all the relevant circumstances require the sentence to be served immediately. If the answer to this question is in the affirmative the Court will not afford the offender special opportunity for reform which the process of suspension of sentence offers."
I accept that the learned sentencing Judge must have considered suspending the sentence. However, I also accept Mr Singleton's submission that with all respect to his Honour he did not give reasons for suspending which were sufficiently clear. In other words, it is not clear from his Honour's reasons why he exercised his discretion against suspending the sentence, as he apparently did.
It is of fundamental importance for an offender to know why he or she has been dealt with by the courts in a particular way. That is because justice must not only be done but it must also be seen to be done. In my view, with all respect to the learned Chief Judge, the lack of detailed

reasons in this case makes it difficult, if not impossible, to see why his Honour decided to exercise his discretion against suspending the sentence.

For that reason it seems to me, with all respect, that the sentencing discretion has miscarried and should be re-exercised. In re‑exercising that discretion I would not depart from the 15‑month term of imprisonment for the reasons I have already given. I would, however, give considerable weight to a number of factors personal to the offenders. Those are that they are young, that they were, in my view, somewhat naive in the way that they acted in committing these offences, they are persons of previous good character, they have no criminal record of any kind whatsoever.
They do not use or take drugs. Two of them are pursuing very worthwhile studies. One has completed his studies - Mr Akino - and is pursuing a worthwhile occupation. They showed immediate remorse. By that I refer to the fact that after the offences had been committed they very shortly returned to the motel room for the express purpose of apologising to the complainant.
There is I think in all the circumstances no prospect whatever that these offenders would ever re‑offend. They did not in the course of the assault use any weapons. Although the assault was unquestionably serious - not only in the way that it was carried but because it did involve a home invasion in a sense - the offence was not, I think, premeditated; it is something which happened on the spur of the moment. It seems to me that each of the offenders was somehow carried away by the occasion and acted in ways which were quite out of character.

In those circumstances it seems to me that although the sentence of imprisonment was appropriate, the sentence should have been suspended. I would, myself, order the term of imprisonment now to be suspended for a period of 2 years.
ANDERSON J: I agree with the judgment of Templeman J and there is nothing I can usefully add to it.
PARKER J: I also agree.