Read v Director of Public Prosecutions for Western Australia
[2024] WASC 10
•19 JANUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: READ -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 10
CORAM: WHITBY J
HEARD: 20 DECEMBER 2023 & 19 JANUARY 2024
DELIVERED : 19 JANUARY 2024
FILE NO/S: SJA 1078 of 2023
BETWEEN: DEREK WILLIAM READ
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1078 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B AYLING
File Number : PE 11035 - 11037 of 2023
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of aggravated assault occasioning bodily harm, aggravated strangulation and aggravated criminal damage - Family violence - Whether sentence manifestly excessive as to type or length - Whether the sentencing magistrate failed to take into account mitigating factors
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal on grounds 1 to 4 granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J Cafaro |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | Cafaro Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
DAR v The State of Western Australia [2010] WASCA 72
Dinsdale v R (2000) 202 CLR 321
Drage v The State of Western Australia [2021] WASCA 6
Gillespie v State of Western Australia [2016] WASCA 216
HNA v The State of Western Australia [2016] WASCA 165
House v R [1936] HCA 40; (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Kowaleff v The State of Western Australia [2010] WASCA 183
Krijestorac v The State of Western Australia [2010] WASCA 35
Mikulic v The State of Western Australia [2009] WASCA 150
Pedrochi v Brown [2021] WASC 81
R v Liddington (1997) 18 WAR 394
Riddoch v Chiera [2020] WASC 114
Roffey v The State of Western Australia [2007] WASCA 246
Rubin v The State of Western Australia [2016] WASCA 2
Samuels v The State of Western Australia [2005] WASCA 193
Shi v Western Australia [202] WASCA 197
The State of Western Australia v Egeland [2018] WASCA 228
Vagh v The State of Western Australia [2007] WASCA 17
Vucemillo v The State of Western Australia [2017] WASCA 37
WHITBY J:
Introduction
This is an appeal against sentence. The appellant was charged with one count of aggravated assault causing bodily harm contrary to s 317(1)(a) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code), one count of aggravated criminal damage contrary to s 444(1)(b) of the Criminal Code and one count of aggravated strangulation contrary to s 298(b) of the Criminal Code.
The appellant and the victim, Ms Rawlings, were in a de facto relationship for approximately two years and resided together in Kununurra for approximately six months prior to the offending.
On 21 August 2023, the appellant pleaded guilty to the three offences in the Perth Magistrates Court. The learned magistrate entered judgments of conviction against the appellant and imposed a sentence of 15 months immediate imprisonment. The sentence commenced on 20 August 2023 and the appellant was made eligible for parole.
On 18 September 2023, the appellant appealed against the sentence imposed by the learned magistrate.
On 2 October 2023, a registrar of this court made an order for the application for leave to appeal to be heard together with the appeal.
In determining the appeal, I have had regard to the following relevant materials:
(1)prosecution notices for each of the relevant offences;
(2)private psychological report for the appellant dated 1 July 2023;
(3)transcript from the primary court dated 21 August 2023;
(4)appellant's outline of submissions filed 1 December 2023;
(5)respondent's outline of submissions filed 11 December 2023;
(6)appellant's supplementary outline of submissions filed 11 January 2024; and
(7)respondent's supplementary outline of submissions filed 16 January 2024.
For the reasons that follow, I dismiss the appeal.
Grounds of Appeal
The appellant appeals the sentence on the following grounds:
(1)the magistrate erred in failing to take proper regard to the principles to suspend a term of imprisonment;
(2)the magistrate erred in not exercising the discretion to appropriately decide to suspend the term of imprisonment by reference to material considerations advanced in the plea, in mitigation contained in oral submissions, and documents tendered (including the 17 page psychological detailed report with 8-character references)
(3)the magistrate failed to take into account material considerations including:
(a)the circumstances personal to the appellant;
(b)the circumstances leading up to the offending;
(c)the circumstances of the offending;
(d)the evidence of high rehabilitative prospects present of the appellant;
(e)the evidence of the appellant having been assessed as a low risk of reoffending; and
(f)the analysis and diagnosis formulation provided by the psychologist in assessing the appellant.
(4)imposed a sentence that was manifestly excessive as to the length of sentence, having regard to the circumstances both referable to the offending and personal to the appellant.
The appellant's appeal notice and submissions have the grounds of appeal in different orders. I will consider the grounds in the order in which counsel dealt with them in submissions:
(1)ground 2 of the appeal notice became ground 1 of the submissions;
(2)ground 4 of the appeal became ground 2 of the submissions;
(3)ground 3 of the appeal stayed consistent;
(4)ground 1 of the appeal became ground 4 of the submissions.
Factual background of the offences
The circumstances of the offending were outlined in the statement of material facts relied upon by the prosecution and were accepted by the respondent.
On 1 March 2023 at about 7.30 pm, the appellant arrived at his home in Kununurra. The accused approached the victim's vehicle, opened the driver's door and immediately punched the victim to the face with his left fist, causing her pain.
The appellant took hold of the victim's hair, pulled her from the vehicle, where she fell backward on to the driveway. The appellant commenced to kick and stomp on the victim while she was on the ground numerous times to the head, ribs and back. This is the aggravated assault occasioning bodily harm offence. The victim curled up into the foetal position to protect herself while she screamed for help.
The appellant placed his foot on the victim's throat while she lay on the driveway, which restricted her breathing. The victim struggled, managing to get the appellant's foot off her throat. At this point, the appellant grabbed the victim by the neck with both hands and squeezed, causing the victim to be unable to breathe. Whilst holding the victim by the neck, the appellant stated something similar to, 'You think you're an asthmatic and can't breathe, well, this is what it's like to not breathe.' This is the aggravated strangulation offence.
The victim kicked and punched at the appellant to stop him choking her while she remained on the ground. The victim scratched the face of the appellant, which made him release his grip and she was able to regain her breath. The appellant moved away, allowing the victim time to ring 000. After assaulting the victim, the appellant picked up the victim's mobile phone, threw it to the ground, causing it to smash, before walking away. It was valued at $1,300. This is the aggravated criminal damage offence.
The victim attended the hospital and remained there for two days. The victim received discomfort to her ribs, swelling to her face, lumps and bruising to her head and body.
The circumstance of aggravation of the offending was that the offences were committed on the appellant's intimate partner, that is that the appellant was in a family relationship (as defined by s 4(1) of the Restraining Orders Act 1997 (WA)) with the victim.
The hearing before the magistrate on 21 August 2023
At the commencement of the hearing, the learned magistrate had the prosecutor read out the facts for the offences.
Counsel for the appellant made a plea in mitigation and the prosecutor made short submissions in support of a custodial term of imprisonment.
In support of counsel for the appellant's submission that any term of imprisonment could be suspended, counsel referred to the following mitigating factors:
(1)the appellant's difficult and dysfunctional childhood;
(2)the appellant's prior good character;
(3)the appellant's stable and secure employment history;
(4)the fact that the appellant was diagnosed with PTSD (as a result of witnessing horrific road traffic accidents), persistent depressive disorder and attachment disorder;
(5)that the appellant was suffering from a number of health issues and had recent surgery on his shoulder;
(6)a number of people close to appellant had passed away recently;
(7)the appellant was extremely remorseful for his offending;
(8)the appellant was a low risk of reoffending;
(9)the appellant pleaded guilty at the earliest reasonable opportunity;
(10)the victim had previously physically assaulted the appellant and their dog and had subjected to the appellant to emotional torment;
(11)at the time of the offending behaviour the appellant was taking anti-depressant and sleeping medication and had consumed a few beers. The appellant did not routinely consume alcohol; and
(12)the appellant has financial and social stability.
The prosecutor made brief sentencing submissions to the effect that, given the seriousness of the offending, an immediate term of imprisonment was the only appropriate sentencing disposition.
The learned magistrate informed the appellant that:
(1)the character references submitted by the appellant (eight in total) spoke to his prior good character;
(2)the appellant and the victim had an on and off relationship for a period of two years;
(3)the psychological report set out the nature of the relationship between the victim and the appellant leading up the offending behaviour;
(4)the appellant had consumed some beer at the time of the offending, but did not routinely consume alcohol;
(5)the appellant had accepted responsibility for the offending by his plea of guilty at the earliest reasonable opportunity;
(6)the appellant's prior good character was a mitigating factor;
(7)the psychological report indicates that the appellant is a person who is damaged as a result of his formative years and is dealing with the legacy of psychological issues as a result;
(8)the appellant has a high work ethic and always maintained employment;
(9)the appellant has a number of physical and mental health issues;
(10)the appellant had received cognitive therapy through counselling sessions;
(11)the appellant had real remorse for his actions; and
(12)the offending was of such a serious nature given the prolonged assault involving different aspects of violence, particularly restriction of the victim's breathing.
The learned magistrate, after reflecting on the circumstances of the offending, was of the view, even taking into account all of the mitigating factors, that only a term of immediate imprisonment was appropriate.
The learned magistrate imposed a total effective sentence of 15 months immediate imprisonment made up as follows:
Charge
Sentence
Aggravated Common Assault
Immediate Imprisonment, 9 months (head sentence)
Aggravated strangulation
Immediate Imprisonment, 6 months (cumulative)
Aggravated criminal damage
Immediate Imprisonment, 3 months (concurrent)
Legal principles
This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act).
The CA Act by s 7(1) allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[1]
[1] CA Act s 6(f) and s 7(1).
Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. Those grounds include where there has been an error of law,[2] the sentence imposed was inadequate or excessive[3] and/or there has been a miscarriage of justice.[4]
[2] CA Act s 8(1)(a)(i).
[3] CA Act s 8 (1)(a)(iii).
[4] CA Act s 8(1)(b).
The appellant must obtain leave to appeal.[5] If leave to appeal is not granted, the appeal is taken to have been dismissed.[6] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[7]
[5] CA Act s 9(1).
[6] CA Act s 9(3).
[7] Samuels v The State of Western Australia [2005] WASCA 193.
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing magistrate has made an error in exercising his or her discretion.[8]
[8] House v R [1936] HCA 40; (1936) 55 CLR 499.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[9]
[9] CA Act s 14(2).
Grounds 1 and 2 was the sentence manifestly excessive as to type or length?
The appellant submits that the sentence imposed by the learned magistrate is manifestly excessive in type (in that the learned magistrate erred by not suspending, conditionally or otherwise, the term of imprisonment imposed) and in length.
A ground of appeal alleging that a sentence is manifestly excessive is asserting an implied error, as opposed to a specific error.[10] An appeal alleging a sentence is manifestly excessive will only succeed if the appellant can demonstrate that the sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[11] A sentence may be excessive because the wrong type of sentence has been imposed[12] or because the length of the sentence is manifestly excessive .[13]
[10] Mikulic v The State of Western Australia [2009] WASCA 150.
[11] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[12] Dinsdale v R (2000) 202 CLR 321, [59].
[13] Shi v Western Australia [202] WASCA 197 [37].
In determining whether a sentence is manifestly excessive as to type or length, the appellate court must examine the sentence having regard to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to that offence, the seriousness of the offence with reference to the scale of seriousness of offence of that kind, and the personal circumstances of the offender.[14]
[14] Vagh v The State of Western Australia [2007] WASCA 17 [47].
As was noted by Martin CJ in Rubin v The State of Western Australia:[15]
A sentence will not be characterised as unreasonable or unjust if it was within the range of sentences reasonably open in the exercise of a sound discretionary judgment. Once it is accepted that there may be cases in which different types of sentence are reasonably open in the exercise of a sound discretionary judgment, it follows that an appeal against sentence on the ground of error to be implied from the type of sentence imposed can only succeed if it is established that the type of sentence imposed was not reasonably open in the exercise of a sound discretionary judgment.
[15] Rubin v The State of Western Australia [2016] WASCA 2.
Section 6(1) of the Sentencing Act 1995 (WA) (Sentencing Act) requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence.
Section 6(3) of the Sentencing Act provides that s 6(1) does not prevent the reduction of a sentence because of any mitigating factors or totality principles. According to s 8(1) of the Sentencing Act, a mitigating factor is one which, in the court's opinion, decreases the moral culpability of the offender or decreases the extent to which the offender should be punished.
Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
Was the sentence manifestly excessive as to type?
A court must not impose a term of immediate imprisonment unless it is the only appropriate sentencing option - that is the court must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a term of imprisonment.[16] In deciding whether it is so satisfied, that court must have regard to the sentencing principles in pt 2 div 1 of the Sentencing Act.
[16] Sentencing Act 1995 (WA) s 39(3).
In HNA v The State of Western Australia, the court said:[17]
Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.
[17] HNA v The State of Western Australia [2016] WASCA 165 [30].
In R v Liddington,[18] where the offender was convicted of possession of child pornography, Steytler J (as his Honour then was) identified the following non-exhaustive factors as being relevant in determining whether or not to impose an immediate term of imprisonment:
(1)the prospect of rehabilitation;
(2)the personal deterrence provided by the threat of activation of the suspended sentence;
(3)the perceived seriousness and intrinsic character of the particular offence;
(4)any element of persistence;
(5)general deterrence;
(6)factors personal to the offender including mitigating circumstances;
(7)the need to demonstrate the condemnation of the community for offences of that kind; and
(8)reasons militating in favour of an exercise of mercy.
[18] R v Liddington (1997) 18 WAR 394, 406.
In some cases, immediate imprisonment is the only appropriate disposition which reflects the seriousness of the offence, even if this is counterproductive to facilitating rehabilitation of the offender. In such cases, the personal circumstances of the offender carry less weight.[19]
[19] The State of Western Australia v Egeland [2018] WASCA 228 [117].
In exercising her discretion not to suspend the term of imprisonment imposed upon the appellant, the learned magistrate said:[20]
There is a concession on your counsel's behalf that we've reached the point of imprisonment. Imprisonment is a penalty of last resort. The question for me to consider is do you go inside by way of a term of immediate imprisonment or do I give you an opportunity by way of a suspended sentence in the community, still a term of imprisonment but suspended either on conditions or suspended outright.
And, so, reviewing all of the factors before me, I do acknowledge the mitigating factors available, but I also reflect back on the serious violence that you inflicted upon [the victim]. To have not only punched her with your fist, then to have grabbed her hair, pulled her to the ground, and then to have kicked and stomped on her not once but multiple times, then to have taken your foot off her throat and then put your hands around her throat and squeezed, while also making a statement to her which was akin to a threat. It's not a real threat but a statement that had implied threatening quality to it in terms of underscoring the violence that you were engaging in by squeezing her throat.
To have engaged in that behaviour, which was a prolonged assault involving different aspects of violence, particularly with the use of your foot on her throat, restricting her breathing while she's on the ground, reflecting on all of those circumstances, even against the mitigatory weight of your plea of guilty and your prior good character, I've come to the conclusion that only a term of imprisonment is appropriate, reviewing all of those factors in the balance.
[20] Primary ts 18 - 19.
The appellant submits that it was not reasonably open for the learned magistrate to be positively satisfied that the term of imprisonment should not be suspended or conditionally suspended because:
(1)the appellant was of good character;
(2)the offending was an aberration; and
(3)there was less need for retribution, deterrence and the protection of the community.
Parliament have specifically expressed that strangulation is a 'perversely intimate and callous form of violence'. Parliament said the following in 2019:[21]
In committing [the act of strangulation], a perpetrator conveys to the victim that they have the power to take their life away. It has been proven that acts of strangulation or suffocation represent a distinct risk when committed in circumstances of family violence. Research shows that suffocation and strangulation committed against an intimate partner is one of the strongest indicators of an increased risk of homicide. Women who experience an episode of non-fatal strangulation by their intimate partner are over seven times more likely to be killed than other women.
[21] Second Reading Speech, Extract from Hansard, Legislative Assembly 27.11.2019.
As Quinlan CJ said in Pedrochi v Brown, a case where the offender was convicted of aggravated assault occasioning bodily harm (including strangulation of the victim prior to the introduction of the specific offence under s 298 of the Criminal Code):[22]
It is characteristic of offences of this kind that they involve significant power imbalances (as the offence in this case did), that they are committed behind closed doors (as the offence in this case was) and that they are accompanied by lies and gas-lighting (as the offence in this case undoubtedly was).
These features underscore the need for the courts, in imposing sentences commensurate with the seriousness of the offence in each case and applying all relevant sentencing principles, to send a strong signal that violence of this kind is intolerable and will be dealt with accordingly. (citations omitted)
[22] Pedrochi v Brown [2021] WASC 81 [62] - [63] (Pedrochi v Brown).
I recognise, as did the learned magistrate, that there were significant mitigating factors present in the appellant's case. The learned magistrate expressly took into account all of these mitigating factors. However, given the incidence of violence in intimate relationships, general deterrence is an important sentencing consideration in offences of this kind.[23]
[23] Pedrochi v Brown [61].
The nature of the offending was extremely serious, as recognised and referred to by the learned magistrate. In such circumstances, the need for denunciation of this type of offending and general deterrence looms large. In determining the appropriate sentencing option, there is the need to demonstrate the condemnation of the community for offences of this kind. It means that the personal circumstances of the offender carry less weight.
In my view it was reasonably open to the learned magistrate, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that suspended imprisonment options were not appropriate.
I would grant leave to appeal on ground 1, but dismiss that ground.
Was the sentence manifestly excessive as to length?
Having rejected the first ground of appeal, the appellant presses the second ground of appeal, that being that the total effective sentence imposed by the learned magistrate was manifestly excessive as to length.
The appellant does not submit that the individual sentences were outside the appropriate discretionary range. Rather, the appellant submits that having regard to the early pleas of guilty and the other significant mitigating factors, the total effective sentence was disproportionate to the overall criminality involved in the offending.
A challenge to the length of the total effective sentence for multiple offences that depends upon an implied error, that being manifest excess as the appellant asserts in ground 2 of the appeal, is properly based upon a breach of the totality principle. The manifest excess principle only applies to a challenge to an individual sentence on the basis of implied error.[24] Therefore, I will determine ground 2 of the appeal on the basis that the appellant contends that the total effective sentence breached the totality principle. The total effective sentence of 15 months imprisonment will be excessive if it breaches the first limb of the totality principle.
[24] DAR v The State of Western Australia [2010] WASCA 72 [15]; Kowaleff v The State of Western Australia [2010] WASCA 183 [56].
The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246. It comprises two limbs. The first limb provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb requires that the total effective sentence not be crushing. The appellant relies only upon the first limb.
By applying the totality principle the goal is to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. It can be given effect by either reducing individual sentences or making some sentences concurrent, or both.
There is no tariff for the offence of assault causing bodily harm, aggravated or otherwise.[25] The guidance afforded by comparable cases is flexible rather than rigid and the mere fact that a sentence is within range of other sentences imposed for similar offending, does not necessarily establish that there was an appropriate exercise of sentence discretion in that particular case.
[25] Drage v The State of Western Australia [2021] WASCA 6 [37].
The appellant submits that the sentence of a term of immediate imprisonment for 15 months imposed by the learned magistrate does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances both referable to the offending and personal to the appellant.
The respondent submits that cases involving broadly comparable offending suggest that an immediate term of 15 months' imprisonment for the totality of the offending, was within a proper exercise of the learned magistrate's discretion.
The respondent referred the court to the cases of Pedrochi v Brown, Gillespie v The State of Western Australia[26] and Riddoch v Chiera.[27] The respondent submits that the appellant's offending was of comparable seriousness to the offending in those cases, although concedes a different combination of aggravating and mitigating features characterise each case.
[26] Gillespie v State of Western Australia [2016] WASCA 216 (Gillespie).
[27] Riddoch v Chiera [2020] WASC 114 (Riddoch v Chiera).
In Pedrochi v Brown, the offender was found guilty after trial on one count of assault occasioning bodily harm. The victim was the appellant's intimate partner. The offender punched the victim twice to the face, dragged her by the hair and pushed her against a wall while grabbing her throat. He was sentenced to a term of immediate imprisonment of two years and six months. The offender was 40 years old, was not considered remorseful, had a significant criminal history, including assaults relating to a former partner and had substance abuse issues. The sentence was upheld on appeal on the basis that the appellate court could not infer error on the part of the learned magistrate or that the sentence imposed was unreasonable or plainly unjust.
In Gillespie, the offender pleaded guilty to 11 offences against his intimate partner, including two counts of aggravated assault occasioning bodily harm. One offence related to strangulation where the victim lost consciousness. The victim received bruising to her neck and throat. For that individual offence, the offender received a sentence of an immediate term of imprisonment of two years. The second offence involved the offender throwing two washing baskets at the victim, causing her to fall to the ground. The offender than pinned her down with the legs of chair and while shouting threatened to put the chair through her head. The offender struck the victim several times to her face and body and she suffered bruising to her arms. The offender received 12 months imprisonment for this offence. The offender was sentenced to a total effective sentence of four years immediate imprisonment for his offending. He was 32 years old and received a 25% discount for his pleas of guilty. Leave to appeal was refused on the basis that the contention that the sentence was manifestly excessive had no reasonable prospect of success.
In Riddoch v Chiera, the offender pleaded guilty on the first day of trial to one offence of aggravated assault occasioning bodily harm. The offender punched the victim to the body and head while they were in the car with children present. The offender hit the victim's head against the car window and choked her until she could not breathe. The offender was 25 years old, had a limited criminal history, was remorseful and was undergoing counselling. The offender was sentenced to 14 months immediate imprisonment. Leave to appeal was refused on the basis that the contention that the sentence was manifestly excessive had no reasonable prospect of success.
The appellant's offending appears to have been an aberration given his prior good character. The appellant has also taken steps to address the underlying cause of his offending. The learned magistrate took into account these mitigating factors, together with the appellant's demonstrated remorse, his pleas of guilty at the earliest opportunity for which he was afforded a 25% discount, his history of trauma and his stable employment.
However, the observations of Parliament and the courts in relation to the need to denounce offending of this kind and the paramount importance of general deterrence are at odds with the contention that the sentence imposed was manifestly excessive as to length, that is that it breached the first limb of the totality principle.
The learned magistrate, correctly in my view, recognised the seriousness of the appellant's offending. The appellant kicked and stomped on the victim and repeatedly applied pressure to the victim's throat.
The respondent submits that a sentence of 15 months' immediate imprisonment fairly reflects the overall criminality of the appellant's conduct and his personal circumstances.
The maximum penalties for the relevant offences are:
(1)assault occasioning bodily harm in circumstances of aggravation, contrary to s 317(1)(a) of the Criminal Code, imprisonment for 7 years, with the summary conviction limit being imprisonment for 3 years and a fine of $36,000; and
(2)strangulation in circumstances of aggravation, contrary to s 298(b) of the Criminal Code, imprisonment for 7 years, with the summary conviction limit being imprisonment for 3 years and a fine of $36,000; and
(3)criminal damage in circumstances of aggravation, contrary to s 444(1)(b) of the Criminal Code, imprisonment for 14 years, with the limit for summary conviction being imprisonment for 3 years and a fine of $36,000.
The sentences upheld in each of the comparative cases to which I have referred, support the position that the total effective sentence imposed by the learned magistrate in this case was not disproportionate to the overall criminality involved. The offending in Pedrochi v Brown was similar in terms of seriousness. After taking into account mitigating factors in this case, which were not present in Pedrochi v Brown, the total sentence imposed in this case which is half of sentence imposed in Pedrochi v Brown is not disproportionate to the criminality involved.
In summary, I am satisfied that, the total effective sentence of 15 months imprisonment imposed by the learned magistrate bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances both referable to the offending and personal to the appellant.
While I would grant leave on ground 2 as I consider it was reasonably arguable, I would dismiss that ground.
Ground 3 - failure to take into account material considerations
The appellant contends that the sentencing magistrate failed to give adequate weight to the appellant's personal circumstances, specifically the appellant's mental disorders of post traumatic stress disorder (PTSD), persistent depressive disorder and attachment disorder.
The appellant submits that although the learned magistrate accepted that the appellant suffered from PTSD, she failed to consider the interaction of his PTSD symptoms in combination with his other mental disorders and other factors which impacted his state of mind at the time of the offending. This included his consumption of mirtazapine and alcohol, insomnia, an abusive relationship which led to the incident occurring (in the sense that the victim was abusive of the appellant) and the appellant experiencing a dissociative derailment during the offending. The appellant says that these factors, as established by the psychological report, are mitigatory as his mental disorders contributed to the appellant's offending.
In Vagh v The State of Western Australia,[28] in considering a ground of appeal that the sentencing judge failed to give any or adequate weight to mitigatory matters, Roberts-Smith JA said:
It is inappropriate to frame a ground of appeal against an aggregate sentence as one that the sentence is manifestly excessive. That is a ground which can only go to an individual sentence imposed for a particular offence. The preceding observations show why that must be so. An overall sentence which is the aggregate of a number of sentences imposed for different offences, cannot be shown to be outside any particular range. As McLure JA pointed out in Garrett v The State of Western Australia [2006] WASCA 279 at [11] (Wheeler and Roberts-Smith JJA concurring), a challenge to the length of an aggregate sentence for multiple offences that depends on an inference of implied error should be based on a breach of the totality principle.
Nor is it proper to formulate a ground which alleges a sentencing Judge 'failed to give any or adequate weight …' to matters in mitigation. The complaint surely must be of an identifiable error that the Judge failed to have regard to a relevant mitigating factor at all, or that the Judge did not give the factor sufficient weight. I have explained above why the latter is not a proper ground where the sentence is said to be manifestly excessive. The former is appropriately expressed as I have done so above. It should not be that the Judge 'failed to give weight' to a particular factor, because it may be an entirely apt exercise of the judicial discretion to conclude that in all the circumstances of the individual case, that factor should not be given any weight. The only proper complaint as a matter of law would be that the Judge failed to have regard to the particular factor; that is to say, that the Judge failed to take it into account at all. Failure to take a relevant consideration into account at all is a failure to properly exercise a judicial discretion (House v The King (supra), per Dixon, Evatt and McTiernan JJ at 505).
[28] Vagh v The State of Western Australia [2007] WASCA 17 [48] - [49].
These observations apply to grounds 2 and 3 of the appeal. The appellant essentially contends that the total effective sentence does not bear a proper relationship to the overall criminality involved in the offences, having regard in particular to the appellant's personal circumstances. This is properly an assertion that the total effective sentence breaches the first limb of the totality principle. Having determined not to allow ground 2 of the appeal, any assertion that the learned magistrate did not give adequate weight to the appellant's mental health and personal circumstances is not a proper complaint.
Therefore, the proper complaint that may be made by the appellant is that the learned magistrate failed to take into account the appellant's mental health and personal circumstances as articulated by the appellant in ground 3 at all.
The appellant appears to be asserting that the mitigatory factor that the learned magistrate failed to take into account at all was that the appellant's mental health disorders were the cause of his offending, as opposed to the cause of the offending being a reaction to a domestic argument.
The psychological report to which the learned magistrate had regard concluded that the offences 'comprised a single episode psychotic/dissociative derailment',[29] as opposed to, as the appellant submits, the offences arising from a single psychotic/dissociative derailment.[30]
[29] Psychological Report dated 1 July 2023 page 5.
[30] Appellant's Supplementary Submissions [14].
Mr Bruce, the author of the psychological report expresses the opinion that[31]:
The overall incident… appears to be a matter of reactive overwhelm, anger and rage. This is deemed to be a single episode psychotic/dissociative derailment due to a final rejection/breakup initiated by his partner/the victim … following a series of multiple extremely stressful unfortunate events and the sense of 'insult to injury' within a relationship with an unstable and fractious partner.
[31] Psychological Report dated 1 July 2023 page 9.
Further Mr Bruce states:[32]
The salient clinical hypothesis to explain Mr Read's offences pertaining to the index event indicate a man who was highly distressed due to ongoing abuse and cruelty that he was enduring in the relationship, alongside an unfortunate series of life events triggering high levels of distress, bereavement, isolation and emotional pain…
[32] Psychological Report dated 1 July 2023 page 16.
The learned magistrate said the following in her sentencing remarks:[33]
I've got some materials in front of me to assist me with sentencing. That's a psychological report from a Ben Bruce, as well as a number of character references submitted by yourself, eight in total from different people who speak to your prior good character. As to the circumstances underpinning what occurred, you indicate that you had had this on and off relationship with Ms Rawlings, where you've moved out for a period of time some months previously to this incident occurring. Unfortunately, you were assaulted by someone in the period separation. You had resumed a relationship with Ms Rawlings.
You had also had a number of difficulties going on for you leading up to the commission of this matter. You had had a number of bereavements in terms of people close to you having passed on. You had also been dealing with a number of issues in relation to your work. You have endured some post-traumatic stress disorder, things that you had seen during the course of your work. You had also been recovering from some physical injury, some shoulder surgery and things of that nature.
I read from your explanation in the report, the psychological report, that you had explained there having been some accusations of cheating going on in the background, that she had accused you of cheating, which you considered to be unfair, but there was also some sense that you thought that she was also acting out by way of infidelity during the course of the relationship. You had consumed some three or four beers on the day of this incident leading up to it. It's not something you engage in routinely. You're not a drinker per se but you accept that you had had some alcohol to drink leading up to this incident.
…
As your personal circumstances, the psychological report indicates that you're a person who is damaged as a result of your formative years and you're the victim of violence at the hands of your mother. She was not a kind person to you. She caused you to have a number of issues lasting into your adult life. In the views of the psychologist, you now deal with some of the legacy of those issues in terms of the attachment disorder that you've developed as well as the post-traumatic stress that you've developed in relation to issues concerning not only how you deal with stress in your life but also relationships of an intimate nature.
As to your other personal circumstances, I do accept that you're a person who has a high work ethic. You've always maintained employment. During the course of that employment, there have been other aspects of trauma that you've endured in terms of the number of road accidents that you've witnessed. You've also had a number of physical issues and you present to court today generally with depression, and so that's something for which you're medicated and for which you're also receiving cognitive therapy through the counselling sessions that you've engaged in with a psychologist.
[33] Primary ts 15 - 17.
I do not accept the appellant's submission that the learned magistrate found that the cause of the offending was solely a reaction to a domestic argument. Further, I do not accept the appellant's submission that the learned magistrate did not consider the role that the appellant's mental health disorders had in the context of his offending. In my view, the learned magistrate clearly considered these factors in exercising her sentencing discretion.
The mitigatory effect, if any, of the appellant's mental health conditions must be balanced against sentencing considerations of personal deterrence and protection of the community.[34] In Kowaleff, Mazza J (as his Honour then was) said:[35]
While mental impairment will in many cases mitigate punishment, it is not always the case. Mental impairment may have two countervailing effects; it may on the one hand lessen culpability and on the other it may make the offender a danger to the community when at large. Consequently it may, in the end, have little or no mitigating effect.(citations omitted)
[34] Vucemillo v The State of Western Australia[2017] WASCA 37 [36] - [38].
[35] Kowaleff [47].
The appellant's offending was not proximate to the alleged conduct of the victim towards the appellant and, in my view appropriately so, the appellant sought to disavow any suggestion that he was blaming the victim for his offending. Further, the appellant's mental health disorders did not cause him to offend previously despite them being present for many years. The appellant was a person who was clearly able to exercise control and judgment in the past and his prior good character was a mitigating factor taken into account by the learned magistrate.
Given that I am satisfied that the learned magistrate did consider the appellant's mental health disorders in the context of the role those disorders played in the cause of offending, while I would grant leave to appeal on the ground 3 as I consider it was reasonably arguable, I would dismiss that ground.
Ground 4 - failure to have proper regard to the principles in suspending a sentence
The appellant submits that it was unreasonable for the learned magistrate to impose an immediate term of imprisonment in circumstances where the appellant was suffering from a mental illness at the time of the offence, where such mental illness had a causal connection with the offending.
The appellant submits that a significant factor against imprisoning the appellant was the appellant's reduced moral culpability due to his mental illness.
In Krijestorac,[36] the Court of Appeal stated that impaired mental functioning at the time of offending may contribute causally to the commission of the offence and reduce the offender's moral culpability if it had the effect of:
(a)impairing the offender's ability to exercise appropriate judgment;
(b)impairing the offender's ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
[36] Krijestorac v The State of Western Australia[2010] WASCA 35.
As I have outlined in consideration of ground 3 of the appeal, the appellant's offending occurred in circumstances where the appellant's mental health disorders had not previously caused the appellant to offend and the alleged violent behaviour of the victim was not proximate to the offending. The nature of the appellant's mental health disorders, are unfortunately not uncommon, as is the fact that offences of this nature are often committed in the context of volatile relationships. This is not a case where the appellant's mental health disorders reduce his moral culpability to the extent that general deterrence is of less importance. In such circumstances, the learned magistrate was correct in determining that general deterrence and personal deterrence had a role to play.
I find that it was not unreasonable for the learned magistrate to impose an immediate term of imprisonment in all of the circumstances of his offending.
While I would grant leave on ground 4 as I consider it was reasonably arguable, I would dismiss that ground.
Conclusion
I make the following orders:
(1)Leave to appeal on grounds 1 to 4 is granted.
(2)The appeal on grounds 1 to 4 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RP
Associate to the Honourable Justice Whitby
19 JANUARY 2024
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