Shoard v Van Der Zanden
[2013] WASC 163
•3 MAY 2013
SHOARD -v- VAN DER ZANDEN [2013] WASC 163
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 163 | |
| Case No: | SJA:1054/2013 | 30 APRIL 2013 | |
| Coram: | HALL J | 3/05/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | NATHAN BRADLEY SHOARD CHRISTIAN JAN VAN DER ZANDEN |
Catchwords: | Criminal law Appeal against sentence Assault occasioning bodily harm Whether 7 months' immediate imprisonment manifestly excessive Turns on own facts |
Legislation: | Nil |
Case References: | Chan (1989) 38 A Crim R 337 Closter v Humphries [2012] WASC 145 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Evans v Vanderheide [2001] WASCA 352 Gavin v The Queen (1992) 6 WAR 195 Griffiths v Procopis [2012] WASC 40 Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 Holden v The State of Western Australia [2009] WASCA 50 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hull v The State of Western Australia [2005] WASCA 194 Johnson v Hayter [2001] WASCA 118 Kilner v The Queen [1999] WASCA 189 Langdon v Kelemete-Leoli-McLean [2011] WASCA 26 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mical v Ward [2003] WASCA 149 Mitchell v The Queen [2001] WASCA 255 Morcom v The State of Western Australia [2013] WASCA 31 Mourish v The State of Western Australia [2006] WASCA 257 Plant v Harrington [2010] WASC 364 Poletti v Adams [2005] WASC 66 Robinson v Smith [2005] WASC 99 The State of Western Australia v Anderson [2004] WASCA 157 The State of Western Australia v BLM [2009] WASCA 88 The State of Western Australia v Camilleri [2008] WASCA 217 The State of Western Australia v Cheeseman [2011] WASCA 15 Trompler v The State of Western Australia [2008] WASCA 265 Vagh v The State of Western Australia [2007] WASCA 17 Wiltshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CHRISTIAN JAN VAN DER ZANDEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 12009 of 2013
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether 7 months' immediate imprisonment manifestly excessive - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : Mr L M Fox
Solicitors:
Appellant : Stephen McGrath
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Closter v Humphries [2012] WASC 145
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Evans v Vanderheide [2001] WASCA 352
Gavin v The Queen (1992) 6 WAR 195
Griffiths v Procopis [2012] WASC 40
Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398
Holden v The State of Western Australia [2009] WASCA 50
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hull v The State of Western Australia [2005] WASCA 194
Johnson v Hayter [2001] WASCA 118
Kilner v The Queen [1999] WASCA 189
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mical v Ward [2003] WASCA 149
(Page 3)
Mitchell v The Queen [2001] WASCA 255
Morcom v The State of Western Australia [2013] WASCA 31
Mourish v The State of Western Australia [2006] WASCA 257
Plant v Harrington [2010] WASC 364
Poletti v Adams [2005] WASC 66
Robinson v Smith [2005] WASC 99
The State of Western Australia v Anderson [2004] WASCA 157
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v Cheeseman [2011] WASCA 15
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Wiltshire v Mafi [2010] WASCA 111
(Page 4)
- HALL J:
Introduction
1 This is an appeal against sentence. On 17 April 2013 the appellant was sentenced in the Magistrates Court to 7 months' imprisonment for an offence of unlawful assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA). That sentence was imposed following a plea of guilty to the charge.
2 The grounds of appeal assert that the sentence was excessive and that the magistrate failed to give proper consideration to whether a suspended sentence was appropriate. No express error is identified and both grounds rely upon an inference of error based upon the outcome.
Background
3 The facts, as stated to the Magistrates Court, are as follows. At about 8.30 pm on Sunday, 24 February 2013 the victim and his girlfriend were sitting together at the poker machines near the Carbon Sports Bar of the Crown Casino at Burswood. The appellant was standing nearby, facing the victim and his girlfriend and talking to them.
4 A short distance away a friend of the appellant was standing talking to another man. I will refer to the friend as the co-offender. Without warning the co-offender turned, ran at the victim and punched him to the face whilst he was still seated. At least three punches were inflicted at this point.
5 The victim stood up and was wrestled to the ground by the co-offender. The co-offender continued to punch the victim, doing so some eight to ten times.
6 While the victim was on the ground the appellant approached and kicked him three times and stomped on him once. Security officers attended and detained the appellant and the co-offender until police arrived. The appellant declined to be interviewed about the incident.
7 The victim sustained grazes to his knees, head and face, bruising around his right eye and a blood nose. He received medical treatment at the casino. There is nothing to indicate which of these injures was caused by the appellant's actions as distinct from those of the co-offender. However, by his plea of guilty and acceptance of the facts the appellant admitted that he bore responsibility for causing bodily harm to the victim.
(Page 5)
- It was evident that by his actions he had participated in a joint assault upon the victim.
Proceedings in the Magistrates Court
8 The appellant first appeared on the charge on 20 March 2013 when the matter was adjourned to enable the appellant to obtain legal advice. The matter then came before the Chief Magistrate on 17 April 2013. The appellant was represented by a solicitor.
9 In mitigation, the appellant's solicitor said that the appellant was 23 years old and in full time work as a diesel fitter. He was employed as an apprentice and hoped to do offshore work when he qualified. It was submitted that on the day in question the appellant had met with a friend from Newcastle who he had not seen for some time. They went to the casino where they drank alcohol and, it was said, became 'quite intoxicated'. What is said to have occurred is best quoted from the plea in mitigation:
They had spoken to this other person. They didn't know this other person's girlfriend was there. They had spoken to her and apparently he didn't like it, the complainant didn't like that and had a few words with Mr Shoard's friend.
They have turned to leave and then the complainant has called them a bunch of faggots and that's when his friend has turned around and turned I guess the verbal altercation into a physical and so they've wrestled on the floor and that's when he has come in and he says the other person has punched his friend about 20 times and obviously it was a tit-for-tat at that point. He has gone to, I guess, separate them with his foot but he has kicked him a few times at the same time. So that was his role in the assault which occurred and fortunately it seems that the complainant has not suffered too greatly in terms of injuries (ts 3).
10 It was said that the appellant was normally a person of good character. In fact he does have prior convictions for reckless driving and driving without authority. However, there is nothing to indicate any history of violence.
11 References were tendered from a family friend and a work colleague. They attested to the appellant's good character, remorse and work ethic. There was also reference to his conduct being alarming and uncharacteristic. The appellant was said to be an amateur golfer with hopes of turning professional. The appellant was said to be concerned as to the effect that a conviction would have on his future ability to travel and on employment opportunities. A spent conviction order was sought
(Page 6)
- for those reasons. That was an extremely optimistic application and it was, in my view, rightly refused.
12 In sentencing the Chief Magistrate said:
Mr Shoard, this incident occurred at the Crown casino when you were in the company with a friend. It appears that the friend and the victim became engaged in a fight, perhaps provoked by a comment from the victim; but they then engaged in a fight, you then chose to participate in that fight at a point where the victim, on the police facts, was pinned to the ground.
You then chose to kick the victim three times to the head and to stomp on him. That is conduct that cannot be excused and whilst you have pleaded guilty at an early stage and you're a young man with a good career ahead of you, the community cannot tolerate unprovoked acts of violence such as this and I'm afraid that a term of imprisonment and a term of immediate imprisonment is the only appropriate punishment for behaviour of this type.
I take into account your early plea, I give you the maximum discount of 20 per cent (sic) for that but that still means that you will be required to serve a term of seven months' imprisonment and you will need to stand down in custody (ts 4).
13 I note that the maximum discount for a plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) is in fact 25% and not 20% as stated by the Chief Magistrate. This may have been a slip of the tongue. In any event, no express error is asserted in the grounds in this regard. The essential question raised by the grounds is not whether the term was too long but whether it should have been suspended.
Grounds of appeal
14 The grounds of appeal as contained in the appeal notice are as follows:
1. The sentence was excessive given the mitigating aspects of the Appellant's offending behaviour, but particularly the matters personal to him including his:
a) youth, being aged only 23 years at the time of his offending behaviour;
b) remorse, demonstrated by plea of Guilty at the earliest possible opportunity; and
c) his prior good character with no prior record.
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- 2. The Magistrate failed to give proper consideration to the applicability and/or appropriateness of a lesser penalty, particularly a suspended sentence of imprisonment, evident by:
a) no reference by the Court to the process of applying 'double weight' to all the mitigating factors; and/or
b) the Court not adjourning the sentencing for the Appellant to allow a pre-sentence report to be prepared for it.
16 Ground 2 alleges a failure to give proper consideration to other dispositions, in particular a suspended sentence. On the hearing of the appeal the appellant's counsel said that he was not seeking to argue that the Chief Magistrate had failed to give any consideration to a suspended sentence; rather it was contended that he had not adequately considered this alternative.
17 As the Court of Appeal has explained on many occasions a failure to give adequate weight or pay sufficient regard to a relevant sentencing consideration only gives rise to an appellable error of it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. In the absence of a failure to exercise the discretion a weighting error is not an independent ground which itself justifies appellate intervention. Rather, it is a conclusion that is implicit in and flows from, a finding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32]. These principles have been most recently repeated in Morcom v The State of Western Australia [2013] WASCA 31 [33].
Ground 1 - Relevant principles
18 An appellate court is not entitled to intervene merely because it might exercise a sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195
(Page 8)
- CLR 665. An appellate court should only intervene if a material error of fact or law is discerned in the sentencing judge's reasons or if the result is manifestly unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325.
19 Sentencing involves the exercise of a judicial discretion. Where there is no express error but the outcome is one that on the facts is unreasonable or plainly unjust, the appellant court may infer that there has been a failure to properly exercise the discretion which the law reposes in the court of first instance: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
20 The failure to mention a circumstance of the offence or one of the personal circumstances of an offender does not necessarily mean that there has been a failure to take into account that matter. What is necessary is that the sentencing judge's reasons must reveal the process of reasoning which produced the outcome to the extent necessary to enable an appeal court to determine whether or not the judgment is erroneous: Hull v The State of Western Australia [2005] WASCA 194 [31].
21 In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standard of sentences customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).
22 A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4) of the Sentencing Act.
23 Section 39(1) of the Act sets out the sentencing options. A court must not use an option in s 39(2) unless satisfied it is not appropriate to use any of the options listed before that option: s 39(3). The ultimate option is a term of immediate imprisonment. The two options immediately preceding immediate imprisonment are a conditional suspended imprisonment order and a suspended imprisonment order respectively.
24 Where a court determines that a sentence of imprisonment of 60 months or less is appropriate it may order that the whole of that term be suspended for a period not exceeding 24 months: s 76 of the
(Page 9)
- Sentencing Act. In Dinsdale Kirby J held that there was a two-stage process required by s 76. The first stage involves looking at all the relevant factors to determine whether a sentence of imprisonment is the only appropriate option. The second stage involves examining all the same considerations again in determining whether to suspend the term of imprisonment. Kirby J (with whom Gaudron and Gummow JJ agreed on this point) held that rehabilitation was not the only relevant factor in considering whether suspension was appropriate and that all of the relevant circumstances needed to be considered.
25 In order to succeed the appellant must show that it was not open for the magistrate to impose the sentence that he did in the proper exercise of his sentencing discretion. It is not sufficient to persuade an appeal court that if more weight is given to personal factors another outcome would be appropriate. As I stated in Plant v Harrington [2010] WASC 364:
34 In submissions it was suggested that if I formed the view that a suspended sentence was not inappropriate then it followed that there must have been error on the part of the magistrate. Whilst I readily accept that it would not be appropriate to impose a sentence of imprisonment to be served unless a suspended sentence had been excluded, it does not follow that my own view of what outcomes may be appropriate must necessarily prevail. If that were the case then the deference accorded to discretionary decisions would be undermined.
35 The very existence of a discretion presupposes that sentences other than that imposed may have been open. I accept that the discretion is constrained by the requirements of s 39 of the Sentencing Act. However, the discretion of the primary sentencer does not only operate at the level of determining the final disposition. It also operates in determining what weight is to be given to relevant factors. In this regard I refer to what was said by Roberts-Smith JA in Vagh v The State of Western Australia at [47]:
The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499).
(Page 10)
- 36 An appellate judge must avoid the risk of too readily concluding that there was error on the basis of his or her own assessment of the circumstances. Accordingly, in my view, the appropriate question is not whether the appellate court considers on its own assessment of the circumstances that it was open to impose a suspended sentence but whether it was reasonably open to the magistrate to take a view of the facts and circumstances that would result in a conclusion that a suspended sentence was not appropriate.
Maximum penalty and range of sentences
26 The maximum penalty for an offence of assault occasioning bodily harm (when not committed in circumstances of aggravation) is 5 years' imprisonment, with a summary conviction penalty of a maximum of 2 years' imprisonment and a fine of up to $24,000: s 317 Criminal Code. The summary conviction penalty provides a jurisdictional limit only and it remains relevant to consider the maximum penalty even where the offence is dealt with summarily: Wiltshire v Mafi [2010] WASCA 111.
27 In Holden v The State of Western Australia [2009] WASCA 50 the Court of Appeal considered sentences imposed for offences of assault occasioning bodily harm. Wheeler JA said that it was difficult to discern a range because of the great variation in circumstances in such cases. However, her Honour noted that sentences of between 6 months suspended imprisonment to 2 years immediate imprisonment had been imposed in cases where there had been a plea of guilty. These comments have also been referred to in the context of a sentence imposed by a magistrate: Wiltshire [42].
28 In Mourish v The State of Western Australia [2006] WASCA 257 McLure JA (as she then was), (Steytler P and Wheeler JA agreeing) summarised the sentences imposed in a number of cases for the offence of assault occasioning bodily harm. Where the case was decided before the commencement of transitional provisions her Honour converted the sentences to post-transitional sentences and recorded the pre-transitional sentence in brackets. The summary of cases was as follows:
Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.
Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two
(Page 11)
- men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.
Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.
Hooper v The Queen (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.
Harvey v Ingles (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.
Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.
The State of Western Australia v Anderson [2004] WASCA 157 - the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.
Robinson v Smith [2005] WASC 99 - the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending [12].
29 Robinson v Smith [2005] WASC 99, Poletti v Adams [2005] WASC 66, Mical v Ward [2003] WASCA 149, Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 and Johnson v Hayter [2001] WASCA 118 were all appeals from decisions of magistrates who could not impose a term of imprisonment exceeding 2 years. All of the cases involved pleas of guilty
(Page 12)
- other than Robinson, Mitchell v The Queen [2001] WASCA 255 and The State of Western Australia v Anderson [2004] WASCA 157.
30 In The State of Western Australia v Camilleri [2008] WASCA 217 it was suggested that Mourish established a range of between 6 and 18 months' imprisonment for this offence. However, as Wheeler JA noted, McLure JA did not, in Mourish, assert that there was a range of sentences. Rather her Honour merely summarised several cases dealing with offences of assault occasioning bodily harm for the purpose of determining whether the particular sentence imposed in Mourish was manifestly excessive. Wheeler JA also referred to Kilner v The Queen [1999] WASCA 189 in which a number of earlier cases had been summarised in which penalties from 8 months to 2 years' imprisonment prior to the transitional provisions had been imposed. This would equate to post-transitional sentences of between 5 months to 1 year and 4 months. However, her Honour also noted that the cases surveyed in Kilner were generally of a very serious nature involving the use of implements or weapons of some kind and some of them involving a degree of persistence.
31 I have been referred to a number of other cases relating to offences of this type. The prosecution referred me to Wiltshire, Langdon v Kelemete-Leoli-McLean [2011] WASCA 26 and The State of Western Australia v BLM [2009] WASCA 88. The appellant referred me to Mical and Evans v Vanderheide [2001] WASCA 352. I have also considered Griffiths v Procopis [2012] WASC 40, The State of Western Australia v Cheeseman [2011] WASCA 15 and Closter v Humphries [2012] WASC 145.
32 These cases only serve to reinforce the observation made earlier that sentences for this offence can vary markedly given the wide range of circumstances in which it can be committed. What can be said is that if there is a range of sentences for this offence a sentence of 7 months does not obviously fall beyond it. However, a range, even if one can be determined, does not set the boundaries of sentencing discretion. What is probably more significant in respect of offences of this nature are the particular circumstances of the offence. The factors which may be relevant include the manner and duration of the assault, whether there was any provocation and the nature of the injuries inflicted.
The circumstances of the offence - The CCTV footage
33 On the hearing of the appeal the respondent sought to tender a disk containing CCTV footage of the incident. The fact that such footage was
(Page 13)
- available was referred to in the Magistrates Court but not played in that court. It is open on an appeal to admit other evidence: s 40(1)(e) Criminal Appeals Act 2004 (WA). Even though this evidence was not before the magistrate it is relevant in determining the question of whether the seriousness of the circumstances of the offence justified the sentence imposed and whether that sentence was so unjust as to amount to a miscarriage of justice. The appellant did not object to the tender on the appeal.
34 On a viewing of the CCTV footage it became apparent that there were a number of differences between that footage and the facts stated in the Magistrates Court. The footage shows the victim and his girlfriend seated near a bank of poker machines talking to the appellant. The co-offender is a very short distance away talking to another person and with his back to the victim. Without any apparent warning the co-offender turns suddenly and punches the victim three times to the head with a closed fist whilst the victim was still seated next to his girlfriend. The victim then stands up and grapples with the co-offender. The appellant backs away a short distance before moving quickly forward and giving a high kick to the victim whilst he and the co-offender are still standing. The victim and the co-offender then move a short distance away, fall to the floor and continue fighting. The co-offender clearly has the advantage and continues to punch the victim. The appellant approaches again and kicks the appellant whilst he is on the ground. The appellant does this a further two times. Accordingly, there are four kicks in total, the last one of which is partly obscured and could be what is described in the facts as a stomp.
35 The suggestion made by the appellant's lawyer in the Magistrates Court that the appellant only became involved after the victim had punched his friend 'about 20 times' is clearly incorrect. The suggestion that the appellant was trying to separate the other two men with his foot is also wrong. Whilst it must be accepted that the appellant did not instigate the assault, it is evident from the footage that he was a willing participant in it. The kicks that he directed at the victim could not be viewed as being an effort to break up the fight; rather they were aggressive acts clearly intended to assist the co-offender in overcoming the victim. At no stage was the appellant at any risk from the victim and his involvement appears to have been entirely voluntary. This was not a scuffle in which the appellant could not avoid involvement. As the Chief Magistrate rightly noted, the appellant made a choice to approach and kick the victim.
(Page 14)
36 Whilst the whole incident takes less than two minutes it should be noted that within that timeframe the appellant makes several approaches to the other two men to deliver kicks. This shows that there was an element of persistence in the appellant's behaviour. The latter two kicks appear to be delivered to the victim's head. That the appellant was at this time in an angry and aggressive mood is confirmed by his conduct when restrained by security guards. Force is required and the appellant appears to be angrily struggling to return to the fight.
37 The appellant's counsel suggested that the reference by the magistrate to the appellant being 'pinned down' when kicked was not borne out by the CCTV footage. By this counsel meant that the kicks were not inflicted after the victim had been overcome and was being held down by the co-offender. However, it is clear that the victim is being grappled by the co-offender and that the co-offender has the advantage. The victim was clearly vulnerable and in no position to defend himself from the kicks of the appellant.
38 It was submitted on the appellant's behalf that the injuries inflicted on the victim were relatively minor. It was contended that the appellant should only be punished for what he did and that an assault involving injuries of this nature was not deserving of immediate imprisonment. As against this the respondent submitted that some of the kicks were directed at the head of the victim and that this was an inherently dangerous act. The respondent said that the fact that more serious injuries were not inflicted was fortuitous.
39 The nature of the injuries inflicted is a relevant consideration but it is not the only such consideration. It is relevant because it may indicate the degree of force used and because it shows the consequences for the victim. However, sometimes a great degree of force and persistence may result in relatively small injuries and, conversely, in other cases a small amount of force may result in injuries of a devastating kind. In the present case the CCTV footage clearly shows that the appellant deliberately kicked the victim with what appears to be significant force. As I have noted some of those kicks were directed to the head. That was conduct that carried an inherent risk of serious harm to the victim. It is fortunate that such harm did not occur. If it had the appellant may have faced a more serious charge.
The personal circumstances of the appellant
40 As to the personal circumstances of the appellant, he is a young man with generally good antecedents. These included a good work history and
(Page 15)
- favourable character references. There was certainly nothing to indicate that he had a prior history of violent offending. The behaviour on this occasion was said to have been fuelled by alcohol and a provocative remark made by the victim.
Ground 1 - Conclusion
41 The commission of offences of this type by relatively young men whose aggression is fuelled by alcohol is not unusual. Magistrates are well placed to see the impact of alcohol related offences. Where such offences occur in a public place, as here, they pose a danger not only to the participants but members of the public. Those who operate such venues and members of the public who use them rightly expect that sentences will have a significant component of deterrence both personal and general.
42 The consumption of alcohol and consequent effects upon judgment and aggression do nothing to mitigate offences of this type. The appellant's counsel suggested that drunken misbehaviour by young men is typical. That submission both inappropriately minimises the conduct in this case and inappropriately suggests that there is a class of persons for whom the courts should make allowance. Offences of this type are not made more acceptable by the fact that they are committed by relatively young men who are drunk.
43 It is true that a sentence of imprisonment is one of last resort. Generally speaking the courts will be hesitant to impose a sentence of imprisonment on a young man. That hesitation is usually expressed in respect of people younger than the appellant. At 23 and in permanent employment he was certainly old enough to appreciate the wrongfulness of conduct of this type. Furthermore, his references refer to a person who had displayed maturity in other aspects of his life.
44 As regards whether there was provocation, the Chief Magistrate's sentencing remarks appear to accept that the assault was initiated by a provocative remark made by the victim. However, his Honour says that the appellant's involvement was unprovoked. These conclusions appear to be supported by the CCTV footage. The appellant does not immediately involve himself in the attack upon the victim. Rather, he backs away before approaching and kicking the victim. Whether his willingness to be involved was increased because of some provocative remark, his immediate intention appears to have been to assist his friend in overcoming the victim. The appellant could very readily have avoided
(Page 16)
- involvement. In any event a violent attack of this nature was a gross over-reaction to a remark of the type alleged.
45 Taking into account all of the relevant circumstances, including those personal to the appellant, I am unable to conclude that the sentence imposed in this case was one that was not properly open to the magistrate. It was undoubtedly a severe sentence but that does not make it manifestly excessive. In those circumstances, leave to appeal in respect of ground 1 will be refused.
Ground 2
46 As I have earlier noted, a weighting error does not give rise to a proper ground of appeal. Accordingly, this ground cannot succeed. However, there are some additional matters raised in respect of this ground that should be mentioned.
47 The appellant's counsel suggested that the speed with which this matter was dealt with in the Magistrates Court was indicative that there had been a failure to properly consider alternatives other than a sentence of immediate imprisonment. The Magistrates Court is, of course, a court of summary jurisdiction. It is typical for matters to be dealt with in that court quickly. Experienced magistrates are used to dealing with matters of this type and are familiar with the relevant legal principles. Speed in this case is indicative of efficiency rather than error.
48 I do accept that a decision to imprison an offender is always a significant one. Often a court will be assisted in making this decision by obtaining a pre-sentence report. But that is an option not a requirement (other than in the case of some other dispositions such as an ISO). It will be a rare case where a failure to obtain a pre-sentence report demonstrates a miscarriage of justice, particularly where the offender is represented by counsel who has a duty to be fully prepared to make a plea in mitigation: Gavin v The Queen (1992) 6 WAR 195. There may be cases where the appropriate disposition is so clear to the sentencing magistrate that the obtaining of a pre-sentence report is unnecessary. For myself, in the circumstances of this case, I would have been inclined to obtain a pre-sentence report, but that is a discretionary matter and does not raise any appellable point.
49 It was submitted by the appellant's counsel that the magistrate had failed to properly take into account all the relevant considerations again in considering whether a suspended sentence was appropriate. In this regard, he refers to Dinsdale. The requirement to give consideration to all
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- circumstances again does not require that there be a detailed account of that exercise. The magistrate clearly raised the issue during the course of submissions. The implicit invitation to address him on the question of a suspended sentence was taken up by counsel for the appellant. On a fair reading of the transcript it would not be possible to reach any conclusion other than that the magistrate did give consideration to a suspended sentence but decided that it was not appropriate in all of the circumstances. Indeed in argument on the appeal the appellant's counsel accepted that his argument was not that the magistrate failed to give consideration to the question of a suspended sentence but rather that he had failed to give adequate consideration to it.
Conclusion
50 The sentence imposed in this case was, in all the circumstances, a severe one, but it was not one that was not open to the magistrate. In those circumstances it is not a sentence that in itself manifests error. No other express error having been identified, the appeal must fail.
51 Accordingly the following orders are made:
1. Leave to appeal refused.
2. Appeal dismissed.
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