Riddoch v Chiera - [2020] WASC 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RIDDOCH -v- CHIERA [2020] WASC 114
CORAM:   MCGRATH J
HEARD:   2 APRIL 2020
DELIVERED          :   7 APRIL 2020
FILE NO/S:   SJA 1132 of 2019
BETWEEN:   RUDY AARON RIDDOCH
Appellant
AND
CHRISTOPHER CHIERA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE BENN
File Number            :   JO 11994/2018

Catchwords:

Criminal law – Appeal against sentence – Aggravated assault causing bodily harm – Breach of procedural fairness – Miscarriage of justice – Sentence manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 317(1)
Sentencing Act 1995 (WA), s 9AA, s 39, s 76

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Abigail Rogers Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (WA)

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

AMH v The State of Western Australia [2016] WASCA 180
Bropho v Hall [2015] WASC 50
Carley v Sheppard [2004] WASCA 80
Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Duncan v The State of Western Australia [2018] WASCA 154
Fogg v The State of Western Australia [2011] WASCA 11
Gillespie v The State of Western Australia [2016] WASCA 216
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnson v Scott & Anor [2004] WASCA 76
Kioa v West (1985) 159 CLR 550
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McComish v Harman [2016] WASC 324
McCoombe v The State of Western Australia [2016] WASCA 227
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nafranec v Nicol [2013] WASCA 123
Piccolotto v The Queen [2015] VSCA 143
Roncevic v The State of Western Australia [2012] WASCA 43
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Teakle v The State of Western Australia (2007) 33 WAR 188
Tran v The State of Western Australia [2019] WASCA 50
Wragg v Bond [2009] WASC 383

MCGRATH J:

Mr Riddoch was charged with one offence of assault causing bodily harm in circumstances of aggravation contrary to s 317(1) of the Criminal Code (WA). Mr Riddoch pleaded not guilty to the charge. However, on the first day of his trial in the Magistrates Court, Mr Riddoch pleaded guilty and was sentenced. The magistrate imposed an immediate term of imprisonment of 14 months. Mr Riddoch now seeks leave to appeal against the sentence imposed. Mr Riddoch contends that the magistrate's conduct during the sentencing hearing resulted in a breach of procedural fairness that constitutes a miscarriage of justice and further, that the magistrate imposed a sentence that was manifestly excessive.
For the following reasons, I have determined that the appeal must be dismissed.
In these reasons for decision, I will consider the following:
(a)The charge on the Prosecution Notice.
(b)The Magistrates Court sentencing hearing.
(c)The grounds of appeal.
(d)An assessment of the merits of the appeal.

The charge on the Prosecution Notice

The Prosecution Notice lodged on 26 September 2018 pleaded that Mr Riddoch unlawfully assaulted another and thereby did that person bodily harm in circumstances of aggravation, namely that the offender was in a family relationship with the victim of the offence and a child was present at the time of the offence, contrary to s 317(1) of the Criminal Code (WA).[1]
[1] Prosecution Notice lodged 26 September 2018, charge number JO 11994/2018.

The Magistrates Court sentencing hearing

On 5 September 2019 Mr Riddoch appeared in the Magistrates Court represented by a legal practitioner. The magistrate read the charge to Mr Riddoch and he pleaded guilty to that charge.[2] His Honour ordered a pre‑sentence report and adjourned sentencing to 16 October 2019.[3]
[2] ts 4 (5/9/2019).
[3] ts 5 (5/9/2019).
On 16 October 2019 Mr Riddoch appeared in the Magistrates Court to be sentenced. The facts, which were not disputed by Mr Riddoch, were read to the court in the following terms:[4]
The facts in this particular matter are that the accused and the victim at the time had been partners for about six years, and they share a three year old daughter together. It was 24 September 2018. The victim had picked the accused up from a McDonald's restaurant in Joondalup Drive. The victim was in the driver's seat, the accused in the passenger seat. Their three year old daughter and the victim's eight year old son were in the backseat of the car.
While driving southbound down on the Mitchell Freeway, the accused and the victim argued in relation to the children having to stay up late so that the accused could be picked up. He, essentially, had asked to be picked up from a function. Out of fear, the victim has pulled over to the side of the Mitchell Freeway and told the accused to get out of the car. After a further argument, the accused then punched the victim to the upper-left arm, he has grabbed the inside of her bicep and squeezed her arm.
He has then punched the victim to her left breast and the left side of her stomach. The accused continued to assault the victim and hit the victim. He has hit the victim's head against the car window, before grabbing the victim around her throat and squeezing her neck until she couldn't breathe. The victim struggled against the accused and grabbed hold of his hair, so the accused then punched her twice to the left side of her jaw.
After the victim started choking, the accused let go of her neck. The victim told her son and daughter – took hold of her son and daughter, rather, and fled into some nearby bushes, before calling police. As a result of that assault, the victim sustained bruising to the left side of her cheek, her left arm, swelling to the left side of her jaw, and a large lump on the right side of her head. The accused was arrested at the Mandurah Police Station some time later, and he participated in a video record of interview.
During that interview, he stated that he had a lot to drink on that day and couldn't recall the incident, and those charges were laid.
[4] ts 2 ‑ 3 (16/10/2019).
Mr Riddoch's counsel delivered a plea in mitigation, submitting that Mr Riddoch had ceased his relationship with the victim, had moved back in with his foster parents and had significantly reduced his drinking of alcohol.[5] Further, that Mr Riddoch was remorseful for his actions and had acknowledged the impact and trauma that his offending would have had on the victim and children.[6] Counsel submitted that Mr Riddoch was undergoing counselling,[7] and was now focused solely on his work, his football and his relationship with his parents.[8] Reference was made to Mr Riddoch's background and the issues that had stemmed from his childhood including a lack of emotional support and a poor parental upbringing.[9]
[5] ts 6 (16/10/2019).
[6] ts 7 (16/10/2019).
[7] ts 8 (16/10/2019).
[8] ts 8 (16/10/2019).
[9] ts 9 (16/10/2019).
The magistrate imposed a term of 14 months' imprisonment and declined to suspend the term of imprisonment.[10] Before his Honour was a pre‑sentence report,[11] Mr Riddoch's criminal record,[12] eight character references,[13] and an apology letter written by Mr Riddoch to the victim.[14]
[10] ts 14 (16/10/2019).
[11] ts 2 (16/10/2019).
[12] ts 2 (16/10/2019).
[13] ts 2 (16/10/2019).
[14] s 7 (16/10/2019).
His Honour determined that the offending was extremely serious, being a prolonged assault involving numerous strikes to the victim that included striking her head into the window of the car, strangling her until she could not breath and striking her further times in the face.[15] His Honour observed that this occurred in the context of domestic violence and while there were two young children sitting in the back of the car.[16]
[15] ts 12 (16/10/2019).
[16] ts 12 (16/10/2019).
His Honour accepted that Mr Riddoch had a limited criminal record, however that he had a prior conviction for the same offence against the same victim in 2016.[17] His Honour also recognised the difficulties Mr Riddoch had in his upbringing and the abuse he suffered as a child,[18] and that the character references spoke very highly of him.[19]
[17] ts 11 (16/10/2019).
[18] ts 11 (16/10/2019).
[19] ts 13 (16/10/2019).
In mitigation, his Honour accepted that Mr Riddoch was now taking steps to address the domestic violence and alcohol abuse.[20] Further, Mr Riddoch was afforded a discount of 15% under s 9AA of the Sentencing Act 1995 (WA) for his plea of guilty.[21]
[20] ts 13 (16/10/2019).
[21] ts 11 (16/10/2019).

Appeal

Mr Riddoch pleads three grounds of appeal in the following terms:[22]
[22] Notice of Appeal; Appellant's Written Outline of Submissions dated 5 March 2020 [1].
Ground 1:
The learned Magistrate's conduct did not allow defence counsel to make full submissions as to the appellant's personal circumstances and the nature of the relationship between the appellant and complainant, which hindrance resulted in a miscarriage of the sentencing exercise.
Ground 2:
The type of sentence imposed was manifestly excessive as it was reasonably open to His Honour, in all the circumstances, to suspend the term of imprisonment imposed;
Particulars:
2.1The plea of guilty and the relevance of the discount for that plea;
2.2The appellant's antecedents;
2.3Sentences imposed in, broadly, comparable cases;
2.4The prosecution's concession as to the type of sentence open to the Court.
Ground 2A:
The learned Magistrate erred when he failed to adequately consider the imposition of a type of sentence less than one of immediate imprisonment.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[23] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[24]
[23] Criminal Appeals Act 2004 (WA), s 9(1).
[24] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[25] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[26]
[25] Criminal Appeals Act 2004 (WA), s 9(2).
[26] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal and may set aside the sentence and substitute a sentence that should have been imposed.[27]
[27] Criminal Appeals Act 2004 (WA), s 14.

Assessment of the merits of the appeal

I will now consider each ground of appeal. I will first determine ground 1 given that Mr Riddoch contends that the magistrate denied him procedural fairness and accordingly, that there has been a miscarriage of justice.

Ground 1 – procedural fairness

Mr Riddoch contends that the magistrate's conduct during the sentencing hearing was such that defence counsel was unable to make full submissions as to Mr Riddoch's personal circumstances and the nature of the relationship between him and the complainant, which hindrance resulted in a miscarriage of justice.[28] Mr Riddoch contends that his Honour 'continually interrupted counsel and was bordering on being discourteous.'[29] At the hearing of the appeal counsel for Mr Riddoch relied upon both the transcript and electronic recording of the sentencing hearing.[30] I have considered both the transcript and the electronic recording.
[28] Notice of Appeal; Appellant's Written Outline of Submissions dated 5 March 2020 [12].
[29] Appellant's Written Outline of Submissions dated 5 March 2020 [39].
[30] Exhibit 1, Electronic recording of sentencing hearing dated 16 October 2019.
The gravamen of Mr Riddoch's complaint, properly understood, is that there has been a breach of the requirement of procedural fairness in that his counsel was unable to properly make a plea in mitigation due to the conduct of the magistrate. With respect to procedural fairness, in Kioa v West,[31] Mason J stated:[32]
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject‑matter, and the rules under which the decision‑maker is acting …
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case.
[31] Kioa v West (1985) 159 CLR 550.
[32] Kioa v West (1985) 159 CLR 550, 584 ‑ 585.
In Teakle v State of WesternAustralia,[33] Buss JA stated:[34]
Absent a clear legislative intent to the contrary, a statutory power conferred on a court must be exercised with procedural fairness … The rules of procedural fairness are concerned with procedures rather than outcomes, and they are therefore rules which govern what a court must do in the course of deciding how a statutory power should be exercised. In other words, the rules of procedural fairness are to be applied to the procedures by which a decision pursuant to the exercise of the statutory power will be made.
[33] Teakle v The State of Western Australia (2007) 33 WAR 188.
[34] Teakle v The State of Western Australia (2007) 33 WAR 188, 205.
A court must afford an offender procedural fairness during the sentencing hearing. In the context of a sentencing hearing, a court must be, and appear to be, impartial, and must provide each party to the proceedings before it with an opportunity to be heard, to advance their respective cases, and to answer the case put against them.
The defence counsel is required to present an oral plea that is characterised by cogent construction and persuasive articulation. The defence counsel must identify any facts in dispute for sentencing purposes, comprehensively outline factors in mitigation of penalty, and draw any relevant statutory provisions or relevant authorities to the judicial officer's attention.
The judicial officer will properly intervene during a plea in mitigation to ensure that relevant sentencing factors are articulated and developed, that factual issues are resolved, and that any questions of law that arise are determined. As a matter of fairness, a judicial officer should inform counsel if the submissions that are being made by the defence counsel will be rejected in the sentencing remarks. The opportunity to further develop an argument should thereby be given to the defence counsel. In Chow v Director of Public Prosecutions[35] Kirby P stated:[36]
[C]ircumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will [itself] amount to a departure from the rules of procedural fairness … There is a fine line between excessive and unjudicial intervention (on the one hand) and candid disclosure of matters of concern to invite response (on the other).
[35] Chow v Director of Public Prosecutions (1992) 28 NSWLR 593.
[36] Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 606.
Any intervention by a judicial officer during the course of counsel's submissions should be conducted with respect and be marked by courtesy. Repeated discourteous interventions may prevent counsel from making further submissions or give rise to an apprehension that the judicial officer is not bringing an open mind to the sentencing process. Either may result in a denial of procedural fairness. Where the balance lies between impartiality and appropriate judicial intervention depends, in part, on the nature of the proceedings. Mr Riddoch referred to a number of cases involving the denial of procedural fairness in the context of a trial.[37] A sentencing hearing is a dynamic process which requires counsel, whilst delivering a planned plea in mitigation, to be flexible by addressing the issues raised by the judicial officer. The discourse between the defence counsel and the judicial officer during a plea is marked by the absence of the jury and witnesses. The caution that attends the judicial officer when engaging counsel in the presence of the jury has no application in the sentencing hearing.
[37] Carley v Sheppard [2004] WASCA 80; Wragg v Bond [2009] WASC 383; Nafranec v Nicol [2013] WASCA 123; Piccolotto v The Queen [2015] VSCA 143.
During the sentencing hearing Mr Riddoch's counsel commenced her plea in mitigation by accepting the facts and identifying that an appropriate disposition was a suspended term of imprisonment or a pre‑sentence order.[38] Counsel then stated 'as per my instructions from Mr Riddoch, that, throughout their six‑year relationship, there were some periods that were extremely toxic.'[39] That submission, led to the following exchange:[40]
HIS HONOUR: Yes. I'm always somewhat cynical when I hear 'toxic relationship' as mitigation to a ghastly incident of domestic violence like this. And I don't really think you're doing your client all that much favour going down the toxic relationship route. I read 'toxic relationship' referred to in some of these references here. What that has got to do with a violent assault like this, when she has picked him up, drunk, at his request, taking him home with the kids in the back of the car. I just don't see the relevance.
Toxic relationship, to me, seems like you're trying to put some of the responsibility - some of the blame - onto the complainant. Well, don't do it. And I don't really want to hear about toxic relationships, if you're seeking to put it as some sort of mitigation to this kind of incident.
ROGERS, MS: I wasn't, your Honour. I was merely - - -
HIS HONOUR: Thanks. Move on, then. Let's leave the toxic relationship argument because it doesn't help.
ROGERS, MS: Your Honour, what it does highlight is the significant changes Mr Riddoch has now made in his life in terms of - - -
HIS HONOUR: Tell me about those. By all means, tell me about the changes in his life.
[38] ts 5 (16/10/2019).
[39] ts 5 (16/10/2019).
[40] ts 5 ‑ 6 (16/10/2019).
During the hearing of the appeal, counsel submitted that the magistrate effectively refused to hear submissions concerning the alleged toxic relationship and thereby, Mr Riddoch was denied procedural fairness. I do not accept that submission.
His Honour raised with counsel immediately his concerns regarding the description of the relationship as being 'toxic'.[41] His Honour directly challenged counsel as to whether a submission was effectively being made that the victim was to blame. Counsel then positively engaged with the judicial officer, clarifying the submission. I do not accept the contention that the magistrate denied Mr Riddoch the procedural right to agitate an issue in mitigation. Mr Riddoch's counsel reframed this part of her submission, which concerned the improvements Mr Riddoch had made to his life since the offending.
[41] ts 5 ‑ 6 (16/10/2019).
Mr Riddoch's counsel then proceeded to deliver a detailed plea in mitigation addressing Mr Riddoch's troubled childhood; support of his foster family; cessation of consuming alcohol; being employed and undertaking training; expression of remorse; provision of a letter of apology; undertaking counselling; paying child support; engagement with football and support from his employer; the positive aspects of the pre-sentence report; and that the relationship with the victim had ended.[42] The plea was a structured and comprehensive plea in mitigation.
[42] ts 6 ‑ 9 (16/10/2019).
In the appellant's written submissions reference is made to other occasions when the magistrate asked questions of counsel. During the plea, his Honour engaged in discourse on two occasions (other than the initial issue concerning the 'toxic' relationship). First, when counsel submitted that Mr Riddoch was paying child support his Honour observed 'that's his legal obligation isn't it?'[43] Counsel acknowledged that was the legal obligation and observed that Mr Riddoch has no contact with his daughter.[44] His Honour then stated 'Poor him. Does he wonder why that has occurred? Isn't there a restraining order in place?'[45] His Honour then observed that the lack of contact with his daughter was a consequence of Mr Riddoch's own actions and that a restraining order was in place. The comment by his Honour 'Poor him' was not necessary but it was most appropriate for his Honour to clarify that the only reason for there being no contact with the child was the restraining order, which had resulted from Mr Riddoch's own conduct.
[43] ts 7 (16/10/2019).
[44] ts 7 (16/10/2019).
[45] ts 7 (16/10/2019).

During this exchange, the magistrate engaged counsel in respect of a factor being put in mitigation, being that Mr Riddoch was paying child support in circumstances where he was denied contact with the child. His Honour engaged counsel in discourse challenging the proposition being put on behalf of Mr Riddoch. By so doing, his Honour afforded counsel the opportunity to further develop the submission. Counsel accepted the magistrate's observation that child support was a legal obligation and that having no contact with his daughter was a consequence of Mr Riddoch's actions.[46]
[46] ts 7 (16/10/2019).
The second occasion that the magistrate raised an issue was when counsel stated that Mr Riddoch's letter of apology addressed the impact that the offending would have had on the victim and one of the children.[47] To that submission his Honour asked 'what about the other child?'[48] Counsel then addressed that question. The question was a proper inquiry into a submission that initially failed to address the impact, if any, that the offending may have had on the second child who was present when the offence was committed.
[47] ts 7 (16/10/2019).
[48] ts 7 (16/10/2019).
Following the discourse addressing the two matters raised by his Honour the plea continued to the point when counsel then made a submission concerning the appropriate type of sentence that may be imposed.[49]
[49] ts 9 (16/10/2019).
Counsel was afforded procedural fairness and was given the opportunity to deliver a comprehensive plea in mitigation. The contention that the magistrate was discourteous or by his conduct did not allow the plea to be made is without foundation.

Ground 2A

Mr Riddoch contends that the magistrate failed to properly consider the imposition of a type of sentence less than one of immediate imprisonment. Mr Riddoch refers, in particular, to his Honour not properly considering a suspended sentence or a pre‑sentence order.[50]
[50] Appellant's Written Outline of Submissions dated 5 March 2020 [65].
The sentencing options available are set out in s 39 of the Sentencing Act. The ultimate option in s 39(2) is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.
The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[51] Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.
[51] Cartwright v The State of Western Australia [2010] WASCA 4 [8].
The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[52] That is, all of the circumstances must be revisited. The magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
[52] Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 [18], [26], [84], [85].
His Honour gave detailed sentencing remarks addressing the circumstances of the offending, identifying the aggravating factors and the personal circumstances of Mr Riddoch by referring to the factors in mitigation including his character references, employment history and progress with rehabilitation. His Honour afforded a 15% discount under s 9AA of the Sentencing Act. His Honour then determined the sentence stating 'in my view, the only appropriate penalty today is the sentence of last resort, a term of imprisonment.'[53] By so doing his Honour, after carefully reviewing all relevant sentencing factors, determined that the sentencing options listed before immediate imprisonment and suspended imprisonment were not appropriate.
[53] ts 14 (16/10/2019).
Accordingly, I do not accept Mr Riddoch's submission that his Honour failed to consider other sentencing options and the imposition of a pre‑sentence order.
His Honour then expressly applied the two tier approach by stating 'considering everything carefully that I took into account in reaching that decision, I'm not prepared to suspend the term. I'm not prepared to conditionally suspend the term.'[54]
[54] ts 14 (16/10/2019).
Accordingly, his Honour correctly undertook the two tier process and did determine that the sentence of 'last resort', being imprisonment, was the appropriate disposition. Having made that determination, his Honour then took into account all matters in reaching that decision in considering the issue of suspension.
His Honour by expressly finding that only a sentence of last resort, namely imprisonment, should be imposed, and then applying the two tier approach in determining whether the term should be suspended, has excluded a pre-sentence order.
Accordingly, there is no merit in ground 2A and leave to appeal is not granted on that ground.

Ground 2

By ground 2, Mr Riddoch complains that the sentence imposed was manifestly excessive. That is, that in all the circumstances, including those personal to Mr Riddoch, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[55]
[55] Dinsdale v The Queen (2000) 202 CLR 321, 324 ‑ 325; [2000] HCA 54 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Riddoch contends that the wrong type of sentence has been imposed, in that the term of imprisonment should have been suspended and that a type of sentence less than one of immediate imprisonment should have been imposed.
To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[56]
[56] Sentencing Act1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613.
In considering ground 2, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[57]
[57] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Mr Riddoch in support of ground 2 asserts at particular 2.4 of the ground that the prosecutor made a concession as to the type of sentence open to the court.[58] The prosecutor did not concede that a suspended sentence was an appropriate disposition. Rather, the prosecutor submitted that he did not wish to be heard.[59] In any event, a prosecutor's concession may inform but does not constrain the proper exercise of the judicial sentencing discretion according to law.[60]
[58] Notice of Appeal, Ground 2 ‑ Particular 2.4.
[59] ts 10 (16/10/2019).
[60] Fogg v The State of Western Australia [2011] WASCA 11 [12].
The penalty for the offence of assault causing bodily harm in circumstances of aggravation under s 317(1) of the Criminal Code is 3 years' imprisonment and a fine of $36,000 when the offender is dealt with summarily. Whilst the maximum sentence that the magistrate could impose summarily was one of 3 years' imprisonment, it is relevant to have regard to the statutory maximum (7 years' imprisonment) and not merely the jurisdictional limit in assessing the seriousness of the offence.
Turning to the circumstances of the offending, his Honour correctly observed that the assault was prolonged and involved multiple strikes to the victim including hitting her head against the window of the vehicle, grabbing her by the throat and then effectively strangling her until she could no longer breathe. Further, the assault occurred in a vehicle that had pulled up on the side of the freeway whilst two young children were in the vehicle. Mr Riddoch's assault caused the victim to flee the vehicle whilst positioned on the side of a freeway.
The domestic relationship between Mr Riddoch and the victim was a significant aggravating factor which increased the seriousness of this offending. In this case the offence was properly regarded as serious because it was committed in the presence of two small children who sat in the back of the vehicle witnessing their mother being violently assaulted. Mr Riddoch's partner and children were entitled to his care and to be respected.
In Bropho v Hall,[61] Mitchell J (as his Honour then was) considered the impact of the aggravating factor of an assault committed in circumstances of a domestic relationship and observed:[62]
An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.
[61] Bropho v Hall [2015] WASC 50.
[62] Bropho v Hall [2015] WASC 50 [16].
With respect to his personal circumstances, Mr Riddoch was 25 years of age when he committed the offence. Therefore, he could only be afforded minimal weight in mitigation for his age, not being a youthful offender.[63]
[63] Tran v The State of Western Australia [2019] WASCA 50 [88].
In 2017, Mr Riddoch was convicted of one offence of assault causing bodily harm in circumstances of aggravation. The offending involved the same victim and occurred in similar circumstances, that is it was a violent attack on the victim, in a vehicle, in the presence of children, that comprised punching the victim to the head and dragging her from the vehicle.[64] For that offending, the court imposed a community based order. Mr Riddoch's criminal record is otherwise limited to a conviction for disorderly behaviour in public and driving offences.
[64] ts 5 (16/10/2019).
In his written outline of submissions Mr Riddoch contends that personal deterrence has limited application in this case for the reason that whilst Mr Riddoch has twice assaulted the victim they are no longer in a relationship.[65] To the contrary, personal deterrence is a highly relevant sentencing factor for the reason that Mr Riddoch has on two separate occasions inflicted serious physical violence against a woman (being his partner) in the presence of children. His Honour correctly observed that whilst the previous conviction was not an aggravating factor, it was relevant to personal deterrence.[66]
[65] Appellant's Written Outline of Submissions dated 5 March 2020 [52].
[66] ts 12 (16/10/2019).
The magistrate accepted that Mr Riddoch had difficulties in his childhood being abused as a child in his family before being placed in a foster home that became a 'very positive force' in his life.[67] His Honour acknowledged that Mr Riddoch has positive qualities which a number of referees outlined.[68] Further, his Honour acknowledged that Mr Riddoch was employed.[69]
[67] ts 11 (16/10/2019).
[68] ts 13 (16/10/2019).
[69] ts 13 (16/10/2019).
The pre‑sentence report identified that Mr Riddoch has long standing criminogenic risk factors including alcohol abuse, poor emotional management and domestic violence behaviours.[70] Whilst subject to the community based order for the previous assault on the victim, Mr Riddoch completed the Relationships Australia Men's Domestic Violence Group Program.[71] Further, Mr Riddoch has undertaken substance abuse counselling through the Wungening Aboriginal Corporation.[72]
[70] Pre-sentence report dated 11 October 2019, 1.
[71] Pre-sentence report dated 11 October 2019, 1.
[72] Pre-sentence report dated 11 October 2019, 4.
The magistrate recognised the plea as a factor in mitigation and afforded Mr Riddoch a 15% discount pursuant to s 9AA of the Sentencing Act. Given that Mr Riddoch pleaded guilty on the first day of his trial the discount afforded is most generous. Mr Riddoch, does not expressly contend that his Honour made an express error in affording a 15% discount. However, it is asserted in Mr Riddoch's written submissions that his lack of recollection of the incident should be taken into account in respect of the timing of the plea and thus the level of discount afforded.[73] Given that the cause of Mr Riddoch's lack of recollection is that he was intoxicated, it is not appropriate to give some further discount. The respondent aptly observed that to give a further discount would be tantamount to rewarding Mr Riddoch for his intoxication at the time he inflicted the violent assault upon his partner.[74]
[73] Appellant's Written Outline of Submissions dated 5 March 2020 [49].
[74] Respondents Written Outline of Submissions dated 20 March 2020 [34].
There is no identifiable tariff for the offence of assault causing bodily harm.[75] Given that the offending may occur in a wide range of circumstances there is no established range. Further, legislative amendments to recognise the commission of assaults within family and domestic relationships as a specific aggravating factor has encouraged firmer sentences for such offences.[76]
[75] Duncan v The State of Western Australia [2018] WASCA 154 [45].
[76] Duncan v The State of Western Australia [2018] WASCA 154 [46].
Whilst decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents. In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[77]
[77] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54].
Mr Riddoch referred to Roncevic v The State of Western Australia,[78] and Johnson v Scott & Anor.[79] The respondent referred to McComish v Harman,[80] Duncan v The State of Western Australia,[81] McCoombe v The State of Western Australia,[82] Gillespie v The State of Western Australia[83] and AMH v The State of Western Australia.[84] I have considered those decisions and the cases referred to in Duncan v The State of Western Australia.[85] In reviewing the authorities concerning sentences for aggravated assault causing bodily harm it must be borne in mind that the higher maximum penalty will ordinarily result in a higher sentence being imposed.[86]
[78] Roncevic v The State of Western Australia [2012] WASCA 43.
[79] Johnson v Scott & Anor [2004] WASCA 76.
[80] McComish v Harman [2016] WASC 324.
[81] Duncan v The State of Western Australia [2018] WASCA 154.
[82] McCoombe v The State of Western Australia [2016] WASCA 227.
[83] Gillespie v The State of Western Australia [2016] WASCA 216.
[84] AMH v The State of Western Australia [2016] WASCA 180.
[85] Duncan v The State of Western Australia [2018] WASCA 154 [47] ‑ [56].
[86] Duncan v The State of Western Australia [2018] WASCA 154 [53].
Mr Riddoch, in particular, relied upon Johnson v Scott & Anor as an appropriate comparable case. It is not. In Johnson v Scott & Anor the appellant was a 24 year old mother with four children, was four weeks' pregnant and had a limited criminal record.[87] After an altercation with a neighbour, the appellant drove her car towards the victim causing bodily harm. The assault was not committed in the context of domestic violence or with any aggravated circumstances. In imposing a suspended term of imprisonment of 12 months the court gave weight to the personal circumstances of the young pregnant mother of four children.[88] There is no suggestion that the imprisonment of Mr Riddoch will cause hardship to his children.
[87] Johnson v Scott & Anor [2004] WASCA 76 [5] ‑ [6], [9].
[88] Johnson v Scott & Anor [2004] WASCA 76 [23].
The cases support a finding that a term of imprisonment of 14 months is within the broad range of the type of sentences imposed for assault causing bodily harm in circumstances of domestic violence.
After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors and the standard of sentencing customarily observed with respect to the offence, I am of the view that the imposition of a term of immediate imprisonment of 14 months was not manifestly excessive. The assault was violent, comprising multiple blows to the head and the choking of the victim, and occurred in the presence of two young children inside a vehicle. Mr Riddoch has previously inflicted a violent assault upon his partner in the presence of the two young children prior to repeating that offence on the same victim.
Accordingly, there is no merit in ground 2 and leave to appeal is not granted on that ground.

Conclusion

Given that leave is not granted on any ground the appeal is taken as dismissed. The sentence of the magistrate is thereby affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
7 APRIL 2020