Strahan v Taylor

[2012] WASC 307

STRAHAN -v- TAYLOR [2012] WASC 307

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 307
Case No:	SJA:1108/2011	Heard:	17 APRIL 2012
Coram:	EM HEENAN J	Delivered:	29/08/2012
No of Pages:	24	Judgment Part:	1 of 1
Result:	Leave to appeal against conviction refused Appeal dismissed Leave to appeal against sentence granted Appeal dismissed
Category:	B
Click here for Judgment in Adobe Acrobat Format

On Appeal from:	For File Number: SJA 1108 of 2011 Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE K T FISHER File Number: BU 290 of 2011
Parties:	PATRICK JOHN STRAHAN GREGORY SHANE TAYLOR
Catchwords:	Application for leave to appeal against conviction and sentence Assault occasioning bodily harm Imprisonment for 20 months with eligibility for parole Criminal Code s 317(1)
Legislation:	Criminal Appeals Act 2004 (WA) Criminal Code (WA)
Case References:	Brown v The State of Western Australia [2010] WASCA 228 Dinsdale v The Queen (2000) 202 CLR 321 Gipp v The Queen (1998) 194 CLR 106 Horn v Butcher [2010] WASCA 67 M v The Queen (1994) 181 CLR 487 Martinez v the State of Western Australia [2007] WASCA 143 Mourish v The State of Western Australia [2006] WASCA 257 Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187 Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

• Last Updated: 29/08/2012


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL


CITATION : STRAHAN -v- TAYLOR [2012] WASC 307 CORAM : EM HEENAN J HEARD : 17 APRIL 2012 DELIVERED : 29 AUGUST 2012 FILE NO/S : SJA 1108 of 2011 BETWEEN : PATRICK JOHN STRAHAN

Appellant

AND

GREGORY SHANE TAYLOR
Respondent




ON APPEAL FROM:

For File No : SJA 1108 of 2011

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE K T FISHER

File No : BU 290 of 2011

Catchwords:

Application for leave to appeal against conviction and sentence - Assault occasioning bodily harm - Imprisonment for 20 months with eligibility for parole - Criminal Code s 317(1)


(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)

Result:

Leave to appeal against conviction refused
Appeal dismissed
Leave to appeal against sentence granted
Appeal dismissed

Category: B


Representation:

Counsel:


Appellant : In person
Respondent : Mr M Seaman


Solicitors:


Appellant : In person
Respondent : Director of Public Prosecutions (WA)





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

Brown v The State of Western Australia [2010] WASCA 228
Dinsdale v The Queen (2000) 202 CLR 321
Gipp v The Queen (1998) 194 CLR 106
Horn v Butcher [2010] WASCA 67
M v The Queen (1994) 181 CLR 487
Martinez v the State of Western Australia [2007] WASCA 143
Mourish v The State of Western Australia [2006] WASCA 257
Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187
Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124



(Page 3)

1 EM HEENAN J: The applicant, Patrick John Strahan, was sentenced in the Magistrates Court at Bunbury on 20 September 2011 for the offence of aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. The details of the charge alleged were that at Collie on 2 January 2011 he unlawfully assaulted one Rebecca Anne Kennerly and thereby did her bodily harm in circumstances of aggravation, namely that he was in a family and domestic relationship with her. Upon his conviction on 18 August 2011 after trial he was remanded for sentence until 20 September 2011, whereupon he was sentenced to a term of 20 months' imprisonment (taking into account time already spent in custody) and was made eligible for parole.

2 A second charge of aggravated assault occasioning bodily harm alleged to have been committed at the same time and place against another person was also heard at the same trial, but that charge was dismissed.

3 From his conviction and sentence Mr Strahan has applied for leave to appeal by notice dated 18 October filed 21 October 2011 - three days out of time. An affidavit by Mr Strahan explaining the reasons for the delay in instituting the appeal has been filed in support of an application for an extension of time. This provides a satisfactory explanation for the delay which included an explanation that the applicant was reliant upon the Legal Aid prison visiting service for the preparation and lodgement of his notice of appeal and that, in fact, this was lodged at the central office on 18 October 2011 at 4.45 pm instead of by 4.00 pm when the office closed. It was not recorded as being received until the following Monday morning. There is no objection to the extension of time and I am satisfied that it should be granted in these circumstances.




Grounds of appeal

4 The proposed grounds of appeal for which leave is sought are as follows:

The conviction was unsafe; having accepted that the complainant had an obvious injury to her knuckle (which she denied at trial) an indicator of a blow or blows struck by the complainant, his Honour failed to make any finding as to how the complainant sustained that injury.

SENTENCE

1. His Honour erred in imposing an immediate jail term rather than a suspended jail term (or other sentence) by not following section 39(2) of the Sentencing Act. His Honour didn't approach

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the matter on the basis that it was not appropriate to use a sentencing option other than immediate jail.
2. The sentence was in any event manifestly excessive having regard to:
a) The lack of any prior record for assault.
b) The appellant was gainfully employed and well thought of at work.
c) The appellant's role as a carer for Ms Ladhams.
d) The circumstances of the case.

5 By orders made on 18 January 2012, Hall J directed that the application for leave to appeal should be heard at the same time as any appeal and gave other usual directions for service and preparation of papers for the hearing. These included a direction that the parties should comply with the consolidated practice directions of 22 January 2009 Part 2 entitled 'Submissions And Authorities'. Nevertheless, no submissions or further papers were filed by the applicant.

6 At the hearing of this application Mr Strahan appeared in person and explained that he had been attempting to obtain legal representation through Legal Aid but had so far been unsuccessful. He believed that an initial refusal to provide Legal Aid had been forwarded to the Legal Aid Review Board for further consideration but he had not heard further in response. He explained that he desired to proceed with the hearing of the application notwithstanding that he was not legally represented. He was offered an opportunity of an adjournment of the application to explore further the possibility of obtaining Legal Aid or legal representation but he decided that he would prefer to have the matter dealt with despite not being legally represented.




The trial

7 The trial of Mr Strahan on the two charges took place in the Magistrates Court in Bunbury over two days, the first 14 July 2011 and the second 18 August 2011. The police prosecutor presented the case for the respondents and Mr Strahan was represented by counsel, who defended the case on his instructions throughout. Four witnesses gave evidence for the prosecution. The first was Mrs Rebecca Anne Kennerly, the person alleged to have been assaulted on the first charge; the second was her mother, Mrs Susan Carmen Ladhams.

(Page 5)

8 In January 2011 Mrs Ladhams and Mr Patrick Strahan had been in a relationship for about five years. They had been living together at 10 Ogden Street, Collie with Patrick Ladhams, the son of Mrs Ladhams, then aged 13 years, the youngest of her five children. Mrs Ladhams was partly disabled and in need of care and it was Mr Strahan who was her principal carer over that five-year period. She had various disabilities associated with back, knee and elbow problems suffered in an accident while on holiday.

9 The first witness, Mrs Rebecca Anne Kennerly, was 29 years of age at the date of the trial and lived nearby in Collie. The assault alleged was said to have occurred on the evening of Sunday, 2 January 2011 at the Ogden Street home. The remaining two witnesses who gave evidence on the second day of the trial were police officers who had attended the address at Ogden Street, Collie at about 9.50 pm on the evening of 2 January 2011 in response to a call. They were Sergeant John Robert Hawking and Constable Gregory Shane Taylor. As a result of information and observation at the scene, Constable Taylor arrested Mr Strahan and, in company with Sergeant Hawking, took him to the Collie police station, where he was interviewed and participated in a video record of interview.

10 The case for the prosecution was that at some earlier time on 2 January 2011, Mr Strahan had remonstrated with Mrs Ladhams' 13-year-old son about the manner in which he had been riding his bicycle in or near the Ogden Street home and had threatened him in some way because of what was said to be unacceptable behaviour by the young boy. The boy then returned quickly to his sister's house and complained to her about the manner in which he had been spoken to or treated by Mr Strahan. Thereupon, Mrs Kennerly got in her car and drove around to Ogden Street to remonstrate with Mr Strahan about his alleged treatment of her young brother. She arrived at the door, there was some yelling and shouting, and perhaps some pushing and shoving also involving Mrs Ladhams, who attempted to intervene between her de facto boyfriend and her daughter in the argument which was quickly developing.

11 Matters went from bad to worse and Mr Strahan told Mrs Kennerly to leave in no uncertain terms and went to her car, which was parked in the driveway, and released the handbrake so that it would roll back down the slope out of the house, inducing her to depart. Mrs Kennerly rushed to the car, whereupon she says she was struck by the applicant, knocked to the ground and had her face and head pushed into the gravel, suffering injury. Somewhere in the melee between the door and the activities in the

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driveway Mrs Ladhams also fell and was injured. She gave a report to the police on their arrival at the scene that she had been struck by the applicant and that resulted in the second charge of aggravated assault occasioning bodily harm against him in respect of the injuries which she sustained.

12 In his discussions with the police at the scene and in more detail in the video record of interview at the Collie police station, the applicant steadfastly denied punching, striking or in any way assaulting either of the two women. His account was that when Mrs Kennerly got angry and, so he said, lost her temper at the door of Ogden Street, he told her to leave and when she would not, he went and released the brake on her car in an endeavour to force her to go as the car rolled down the drive. According to him, at the height of her anger, she ran at him, slipped and fell, injuring her knee and striking her head on the metal gate by the driveway. He maintained that her assertions that he struck her or pushed her head into the gravel were all false.

13 When Mrs Ladhams was giving evidence for the prosecution (on both charges) she denied that the applicant had ever struck her and also denied that he had struck or assaulted her daughter, Mrs Kennerly. These denials were inconsistent with the written statement which she had made to the police on the evening of the episode. That statement was produced to her but she maintained her denials and said that the contents of the statement were false, whereupon, with the leave of the magistrate, she was declared to be a hostile witness under the provisions of s 20 and s 21 of the Evidence Act 1906 (WA). She was thereupon cross-examined by the prosecuting sergeant but again she maintained her denials and asserted that the earlier written statement was false and that there had been no assault upon her or upon her daughter. She asserted that the injuries which she suffered that evening and which were depicted in some of the photographs occurred when she fell over while hurrying down the driveway following the car that was rolling down the driveway.

14 At the conclusion of the case for the prosecution, counsel for Mr Strahan submitted that there was no case to answer upon either charge. After receiving submissions and adjourning to consider the matter, the learned magistrate upheld the submission that there was no case to answer in relation to the charge alleging an assault upon Mrs Ladhams and he thereupon dismissed that charge. However, he held that there was evidence to support a prima facie case against the applicant in relation to the charge of assault against Mrs Kennerly and directed that the trial should proceed on that charge alone.

(Page 7)

15 Counsel then appearing for Mr Strahan announced that the applicant would not give evidence and did not intend to adduce any other evidence. His Honour, therefore, was called upon to determine the charge of aggravated assault against Mrs Kennerly, occasioning her bodily harm, solely upon the evidence led for the prosecution, including the evidence of Mrs Ladhams who, as already noted, had denied that any such assault had been committed by Mr Strahan.

16 At the conclusion of submissions on the afternoon of the second day of trial the learned magistrate gave detailed oral reasons for his decision to convict the applicant as charged. These reasons appear at pages 31 to 36 (inclusive) of the transcript for 18 August 2011.

17 His Honour found, and this finding has not in any way been challenged, that the accused and the victim were 'in a family and domestic relationship' in that Mr Strahan was the partner of the mother of Mrs Kennerly and that she was, accordingly, to be regarded as a de facto stepdaughter. His Honour also concluded that Mrs Kennerly had suffered injuries sufficient to be declared at law as bodily harm, these being a cut to the side of her head, pain as a consequence of blows to her head, grazes on her hands and knees, a painful jaw and an injury to her knee.

18 His Honour also found that there had been an incident concerning the young boy's bicycle at the rear of the Ogden Street home which led to an argument between the young boy, Sean, and Mr Strahan with which Mrs Ladhams also became involved. In the midst of this argument Sean's telephone rang and the applicant answered the phone, apparently lost his temper and slammed it down and broke it. Sean then got on his bicycle and rode off to his sister's house, Mrs Kennerly's home, presumably for refuge. Mr Strahan attempted to chase him but the boy quickly got away. On arrival at Mrs Kennerly's home Sean told his sister what had happened and she came around to the Ogden Street property in order, so the evidence indicated and his Honour accepted, for the specific purpose of seeing if her mother was all right.

19 The learned magistrate found that there was a divergence in the evidence as to what happened next. The evidence which he accepted was that of Mrs Kennerly to the effect that on parking her vehicle up the inclining driveway near the rear yard she went to the back door and was greeted by her mother and Mr Strahan. An argument developed. Mr Strahan swore at her and told her to leave. According to her, Mr Strahan reached into the car, changed the gear lever from Park and allowed it to roll back down the driveway towards the road.

(Page 8)

20 According to Mrs Kennerly, Mr Strahan then pushed her into the fence, causing her to fall. She then threatened to call the police and challenged him not to hit a woman, whereupon, according to her, he punched her twice, as a result of which she slipped and fell on to one knee. According to her, she was then struck by Strahan again in the chest, fell again, and says she was kicked by him in the hip and back area. She claims that she was grabbed by the hair, that her head was then slammed into the gravel on a couple of occasions, and that her mother then intervened. She was then able to roll away and kicked out at the accused, striking him in the groin. She could then get to her feet and ran down the driveway, calling for anyone within earshot to call the police. According to her, she was pursued by the applicant down the driveway and took refuge in the house opposite. The applicant caught up with her on the verandah of that house, causing her to run to the verandah of another neighbouring house, where the occupants announced that the police had been called and were on their way.

21 His Honour referred to the video record of interview given by the accused to the police in the early hours of 3 January 2011. In that interview the accused said that when Rebecca Kennerly got out of her vehicle at the driveway at the rear of the Ogden Street home she was in such an agitated state that she was screaming abuse at him and lunged at him, so that when he sidestepped she fell and struck the fence. In the record of interview Mr Strahan says that he simply moved to the motor vehicle and released the gear lever from its park position to neutral to allow it to roll down the driveway. He claims that he simply went inside until some time later and was not involved further with Mrs Kennerly.

22 There were photographs showing injuries to Mrs Kennerly's hands, arms and knees. There were, his Honour concluded, some minor inconsistencies between the nature of the injuries claimed and the sequence of events described by Mrs Kennerly, but his Honour did not consider that this was in any way unusual or detracted from the credibility of Mrs Kennerly. His Honour concluded that there was nothing in the evidence of Mrs Kennerly which caused him any alarm and that, having had the benefit of hearing and observing her evidence, he regarded her as a credible and believable witness.

23 His Honour then returned to the account given by the applicant in the video record of interview to the police officers which cast Mrs Kennerly as the aggressor. Of this his Honour said:

(Page 9)


That's an account that I find not only remarkable, but simply testing my credulity and for reasons that on his description, the motor vehicle arrived at the premises up the driveway, the driveway which one looks at the house is to the right of the premises, and that for Ms Kennerly to alight from the vehicle she would do so and she would be alighting from the point relevant to the house at a point furthest from the house.

24 On his review of the relationship of the fence to the driveway of the house, his Honour concluded that the description of events given by Mr Strahan in the video record of interview that she had lunged at him was not credible because it was most unlikely that any such lunge would have occurred near the fence. His Honour was not impressed with the reliability of the account given by Mr Strahan in the video record of interview saying:

His presentation otherwise on the video record of interview, could I say, was less than ideal. In fact, the pompous, presumptive position that he takes was self-evidently a matter that was patently not believable. His surprise, as would be suggested indicated, at the conclusion of the video record of interview of being charged formally with the offences is a situation that's a fiction. I am and do reject the evidence of the accused as simply testing my credulity. In the circumstances, there is no other evidence and I accept the evidence of Rebecca, that is the victim of this case, as an accurate and complete account of the events of this evening and the charges proven and proven beyond a reasonable doubt.





Review of evidence at trial

25 None of the evidence of Mrs Kennerly at the trial related to an alleged assault by Mr Strahan against her mother, Mrs Ladhams. Her evidence simply did not touch upon such an incident in any way at all but was concerned entirely with the sequence of events preceding, during and following the assault upon her by the applicant.

26 In her evidence-in-chief Mrs Ladhams denied that Mr Strahan had assaulted Mrs Kennerly and made no mention of him assaulting her. She said that certain injuries which she sustained that night and which were shown in photographs of her taken at the police station had been caused because she had tripped over and fallen as she attempted to run down the driveway to follow he daughter's car which had been set rolling down the incline and off the property. She said that the events in question had all begun when young Sean had returned from his sister's house on his bicycle and had behaved rudely to Mr Strahan. Mr Strahan had reprimanded him and also moved his bicycle which he had left standing near or against the back door of the house, obstructing the way. She said that Sean had been told on previous occasions not to leave the bicycle

(Page 10)


there. Discovering it in that position, Mr Strahan had pushed or thrown it out on to the backyard and, in the process, the handlebar or some part of the bike was slightly scratched. This caused Sean to protest, as a result of which the applicant took his mobile phone from him (a present from the applicant and Mrs Ladhams earlier in the year) and smashed it against a post, breaking it in the process. At that point, Sean, despite being told not to do so, got on the bike and rode away, evidently to his sister's house. His sister, Elizabeth Kennerly, arrived alone in her car about four or five minutes later and, according to her mother, was upset, agitated and angry and was calling for Mr Strahan. He came out and told her to leave the property and when she did not do so he went to her vehicle, released the braking mechanism and allowed it to roll slowly back down the incline towards the street. According to Mrs Ladhams, Mrs Kennerly ran after the car, tripped and fell and hit her head on the fence, suffering the injuries of which she complained.

27 The police prosecutor then referred Mrs Ladhams to two separate written statements which she had previously made to the police about this incident. He suggested to her that the contents of each statement were inconsistent with the testimony which she had given in the court. Mrs Ladhams agreed that the first statement was inconsistent but said that its contents were false and that she had given it to the police in that form because she was trying to get her son Sean back and was afraid that Mrs Kennerly would get custody of the boy. At first she maintained that the second statement was not inconsistent with her testimony but it was later demonstrated that in material aspects it was. She then maintained that that statement was also false and incorrect and had been given again because she was attempting to get physical custody of her son back from her daughter. Despite her attention being drawn to passages of one or other of the statements in which Mrs Ladhams had said to the police that the applicant had punched or assaulted Mrs Kennerly, she denied that they were true and said that the evidence which she had given in the courtroom was the truth. At no stage did she implicate the applicant in the alleged assault by any of the testimony which she gave at the trial.

28 As already stated, the two police officers who gave evidence were not present when either of the alleged assaults occurred. They arrived at the scene in response to the neighbour's calls and, after investigation, took both women to the police station for interview and photographing (the photographic exhibits showed both women had suffered various cuts and abrasions). They also arrested the applicant and took him to the police station where, as already noted, he participated in a video record of interview. That VROI was put in evidence and it contained a series of

(Page 11)


angry denials by the applicant of assaulting Mrs Kennerly and the assertion that if she was injured, she had suffered her injuries when she tripped and fell and hit her head on the metal gate by the driveway. He also denied any assault of Mrs Ladhams.

29 From all this it is apparent that the only direct evidence implicating the applicant in the offence alleged was that of Mrs Kennerly herself, although the photographic evidence and the evidence of other witnesses clearly demonstrated that she had been injured by cuts, lacerations and the like, at some episode or episodes at Ogden Street, Collie that evening.

30 The case against the applicant was contradicted by the evidence given by Mrs Ladhams but it was open to the learned magistrate to disregard her denials on the grounds of lack of credibility. The inconsistencies between the evidence given by Mrs Ladhams in the courtroom in the course of the trial and the contents of her out of court statements which had been put to her under s 21 of the Evidence Act, including her own acknowledgement that each of those statements was, in material respects, false provided clear justification for her credit to be doubted and rejected. Quite obviously, the learned magistrate took that course and accepted the evidence of Mrs Kennerly as being truthful and reliable.

31 The evidence of the interview between the police and the applicant set out in the VROI was admissible because, in part, it contained admissions by the applicant which placed him at the scene of the alleged offence, confirmed that there had been an incident or a series of incidents which led him to order Mrs Kennerly off the property and contained an admission that he had let the handbrake or gear lever on her vehicle loose so that it began to roll back down the driveway. Those assertions were sufficient admissions to make the VROI part of the evidence which was receivable at the trial.

32 On the VROI being put into evidence, the whole of its content became evidence before the learned magistrate, including denials or self-serving statements by the applicant. It was, of course, not evidence which had been given under oath or affirmation and the applicant had not been subjected to cross-examination in respect of it. Notwithstanding this, it was evidence at the trial and the learned magistrate was entitled, indeed required, to give it such weight and significance as he considered it deserved. His Honour did address this evidence and concluded that it was not credible and should not be acted upon. Clearly, he accepted the sworn evidence of Mrs Kennerly in the courtroom, subjected as that was to

(Page 12)


cross-examination, to the out of court denials by the applicant and to the evidence of Mrs Ladhams which he plainly regarded as untrustworthy. On this basis, he convicted the applicant.





Sentencing

33 Following his conviction on 18 August 2011 submissions were made to the learned magistrate in relation to penalty to be imposed on the applicant. It was accepted that the applicant was a qualified automotive welder, crane operator and rigger with a good and stable employment record. This was his first conviction for assault. Counsel for the applicant submitted to the learned magistrate that a fine might be imposed but his Honour indicated that he was disinclined to impose a fine (ts 18 August 2011, page 37) and warned the applicant that he was at risk of going to gaol. His Honour adjourned the sentencing to obtain a pre-sentence report and remanded the applicant in custody.

34 The sentencing hearing resumed on 20 September 2011 with Mr Strahan still represented by counsel. The prosecutor submitted that this was a serious offence and, while not at the upper end of the scale of offences of its type, was a serious case of violence within a domestic setting. He submitted that the applicant had not acknowledged his conduct and had shown no remorse. Accordingly, he submitted that a sentence of imprisonment was the only appropriate sentence.

35 Counsel for Mr Strahan referred to the pre-sentence report and produced another reference from an employer, also confirming a good employment record. The pre-sentence report confirmed Mr Strahan's denial of assaulting Mrs Kennerly in any way, and recorded his assertions that her allegations against him were lies and a fabrication. The author of the PSR remarked that because the victim of the assault was the daughter of the applicant's partner, there was a potential for ongoing conflict and that Mr Strahan's denial of the offending and his animosity towards her remained of concern, despite protective measures in place, including a violence restraining order.

36 The applicant was at the time facing three further charges pending in the District Court of Western Australia at Bunbury, alleging three unrelated offences. He had a previous record for stealing and traffic offences in the Children's Court and some drug offence convictions. He had also served a prison term of 3 years and 6 months imposed in 1994 for charges of indecent dealing with a child. He successfully completed a period of parole upon his release from prison for that conviction in 1996 and 1997. The PSR confirmed his good record of employment and

(Page 13)


confirmed that he had the financial resources to pay any fine likely to be imposed.

37 As for his relationship with the victim's mother, Mrs Ladhams, the PSR reported that the relationship had then continued for just over five years and that he was a registered care-giver for her. If he were to be released into the community, it was his intention to reside with Mrs Ladhams in Bunbury. In making a risk assessment, the author of the PSR repeated Mr Strahan's assertions of his innocence notwithstanding his conviction, his lack of empathy or remorse for the alleged behaviour, and animosity towards the victim. His position was that he stated that he wanted nothing to do with her. He threatened suicide if he were to be imprisoned and, in view of his continued denial of responsibility for the offence, his attitude towards the victim and mental health concerns, the authors of the PSR suggested that the court might consider a psychiatric assessment before sentencing and, in the meantime, did not consider Strahan suitable for supervision in the community.

38 The learned magistrate also had before him a victim impact statement by Rebecca Kennerly in which she expressed her fear of the applicant, her concern about a risk posed by him to her young brother and her disapproval of her mother maintaining the de facto relationship with him. It is obvious that there has been a significant breakdown of the relationship between the mother and daughter, leading to an estrangement which the daughter attributes to the applicant. She complained of the continuing effects of the injuries suffered in the assault, anxiety, adverse financial impact on her earning capacity and fear of the applicant.

39 It emerged that following his arrest Mr Strahan had spent almost two months in custody before being released on bail. He was in custody again from 18 August 2011 until sentence on 20 September 2011 in order for the pre-sentence report to be prepared - a total period of pre-sentence custody of almost three months. Despite the suggestion in the PSR, no psychiatric assessment was arranged or obtained before the applicant was sentenced.

40 The learned magistrate gave detailed oral reasons for the sentence which he imposed recounting the background and circumstances of the offence (ts 20 September 2011, pages 4 to 8). His Honour emphasised that the offence at law was a serious matter and carried a prescribed maximum penalty of 7 years' imprisonment. However, his Honour immediately recognised that this was not 'the most serious offence that the court could contemplate, nor that the maximum sentence is applicable in

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this instance' and therefore turned to examine the facts established at the trial. His Honour described the events of this night, including the appellant's unceremonious order for Mrs Kennerly to leave the premises and how he had set her vehicle rolling down the driveway. His Honour described the actual assaults as follows:
Having done that in the very short time available and with the proximity of Ms Kennelly, you then pushed the lady so that she was pushed back into the fence and that she then lost her balance and fell to the ground. She got up quickly but was then struck by you of two blows with your fist to the face which then felled her to the ground. Having again briefly got to her feet, she was then struck again a blow to the chest.

When she fell to the ground, in a sense of protection she rolled on to her side and was then, on her evidence, felt to be kicked in the hip and the back by you. She was of course at that point in time in a defensive position. She was a lady with, at that time, wearing a pony tail and you took hold of her pony tail and then with some significant force started slamming, as she would put it, her forehead into the gravel driveway. She recalls on her account and accepted by the court of two such blows but with the concerns in her circumstances she thereafter lost count.

Again, in a defensive manner she was able to roll on to her back and kick out at you, coming into contact with your groin or your genital area, allowing her the opportunity in your particular circumstances then to escape, and once she had established her orientation then quickly fled down the gravel driveway, to be pursued by you. The pursuit took her across the road, calling for help from neighbours to call the police.

41 His Honour accepted that the applicant had no prior record of any description which would suggest a tendency to violence, and that the last time he had appeared in court and been convicted was in 2002. His Honour observed that, to that extent, this was his first offence as a result of a violent course of behaviour and that he was entitled to the benefit of a mitigatory impact of that absence of pre-existing conduct. His Honour accepted that the applicant was the full-time carer for Mrs Ladhams and had immediate employment opportunities awaiting him if he were to be released. His Honour accepted that Mrs Ladhams herself had significant impairment as a result of which she was a disability pensioner and that there was medical evidence to establish that she was in need of a carer.

42 His Honour observed that a fine was simply not sufficient in the circumstances and that while imprisonment was certainly an option of last resort, assaults within the domestic environment with significant force and of a protracted nature warranted a custodial sentence. His Honour

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observed that the appropriate disposition for the seriousness of the behaviour in this case and the degree of criminality was a custodial sentence of 30 months' imprisonment. Because of the absence of any previous conviction for violence, his Honour observed that in this case an appropriate custodial head sentence would be 24 months but, taking into account the time already spent in custody (nearly 3 months) together with entitlements to parole, it would reduce the head sentence to 20 months' imprisonment. His Honour then observed:
There is nothing otherwise in your antecedents that would indicate that the court should extend to you the benefit of a suspended imprisonment, and furthermore, deterrence, in particular, specific deterrence to you is a significant impact and consideration in the process. You are sentenced to 20 months' imprisonment. The only final conclusion the court has is to declare that you are in the circumstances eligible for parole …





Application for leave to appeal

43 The appeal notice lodged by Mr Strahan seeks leave to appeal against his conviction and against his sentence. Leave to appeal is necessary by virtue of s 7 of the Criminal Appeals Act 2004 (WA). That provides that leave of this court is required for each ground of appeal proposed from a court of summary jurisdiction. It also provides that this court must not grant leave to appeal on a proposed ground unless it is satisfied that the ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193, 487 it has been held that these requirements mean that any ground of appeal must have a rational and logical prospect of succeeding, that is, that it would not be irrational, fanciful or absurd to envisage it succeeding. Unless leave to appeal is granted the application must be refused and the appeal will be deemed to be dismissed. The requirements for the grant of leave to appeal have been frequently examined in many other cases, including Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187 [11] and Horn v Butcher [2010] WASCA 67.

44 The sole proposed ground of appeal against conviction would contend that the conviction was unsafe but is joined with an assertion that while the learned magistrate accepted that Mrs Kennerly had an obvious injury to her knuckle (which she denied at trial) an indicator for a blow blows struck by the complainant, his Honour failed to make any findings as to how the complainant sustained that injury.

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45 This appears to be a reference to submissions made by counsel for the applicant at trial that one of the injuries sustained by Mrs Kennerly to her hand was, according to her, not caused by the applicant and the cause for it was never established. Counsel had submitted to his Honour that this particular injury was consistent with Mrs Kennerly attacking or striking the applicant, rather than vice versa, and was a reason to regard her evidence as unreliable. However, this issue, if it was material at all, did not escape the attention of the learned magistrate. In his reasons for decision his Honour addressed this at (ts 18 August 2011, page 35) saying:

It is clearly the case that that recounting of the evidence of certainly Rebecca is a fundamental account. There are some minor variations and in particular to the number of blows that she was struck. There is also matters raised by counsel, not the least of which is the denial of any injury to the hand of Rebecca and the fact that that injury, on the view of counsel or in the submissions of counsel, is an injury that is self-evidently there on the knuckle of that hand that is consistent with an injury sustained in the course of the assault by Rebecca on Mr Strahan, an assertion that I think has a number of difficulties and the first and most obvious difficulty is that there is no indication from the evidence at all, including that of Mr Strahan, of any application of force by Rebecca to him.

So to that extent, that injury is not and cannot be consistent with a blow delivered by Rebecca to Strahan or to any other person at that particular time, because there is no evidence that there was any application of force by Rebecca to Strahan or anybody, intended or otherwise, and certainly the fact there's the other minor inconsistencies in the recollection as to the particulars of the event is not at all surprising, given that events of this ilk happen in a very confined space quite often, in a very significantly short period of time and it's difficult to recall with any clarity or certainty with the particularity that's demanded sometimes in courts of law when recounting the events caption by caption.

46 It was immediately after this passage that his Honour went on to record that there was nothing in the evidence of Mrs Kennerly which caused him any alarm and that he accepted her as a credible and believable witness.

47 These observations can only connote that his Honour did not accept the premise that Mrs Kennerly ever attacked Mr Strahan and that his Honour also considered that any denial by Mrs Kennerly, if in fact there was one, that the injury to her knuckle was caused by an assault from Mr Strahan, was at the most a minor discrepancy which could be put down to the imprecisions of observation or recall often encountered with witnesses describing unexpected, stressful and alarming experiences.

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There is nothing whatever to support the contention that his Honour's treatment of this minor factual issue was wrong or in any way rendered his decision to convict the applicant wrong or unsafe.

48 Reference in proposed or actual grounds of appeal to a verdict or conviction being unsafe invokes the jurisdiction of the appeal court to determine whether or not there has been any miscarriage of justice - itself a potential ground of appeal under s 8(1)(b) of the Criminal Appeals Act.

49 The significance of such a ground has been examined at the highest levels on many occasions. One of these is Gipp v The Queen (1998) 194 CLR 106 where Gaudron J said at [17] - [18]:

The expression 'unsafe and unsatisfactory' has no very precise meaning. It is commonly used to indicate that, although there was evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt (footnotes omitted). That is the sense in which it was understood by the Court of Appeal in this case. However, it, or an equivalent expression such as 'unjust or unsafe', may be used to indicate that there is some defect in the summing up(footnotes omitted) or 'some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled' (footnotes omitted).

It is well settled that, where it is contended that a verdict is unsafe or unsatisfactory, in the sense that the jury should have entertained a reasonable doubt as to guilt, '[a]n appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict' (footnotes omitted) And '[i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence' (footnotes omitted). In that exercise, it is necessary for an appellate court to have regard to the whole of the evidence. And ordinarily, it will also be necessary to have regard to the trial judge's summing up.

50 With suitable adaptations, these observations are also relevant to the invocation of such a proposed ground of appeal for a conviction at a trial before a magistrate or a judge sitting without a jury. See also M v The Queen (1994) 181 CLR 487 and Martinez v the State of Western Australia [2007] WASCA 143.

51 There are some additional features of the trial relied on by the applicant in his oral submissions to support the contention that his

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conviction was unsafe in this sense. His essential contention is that he never assaulted Mrs Kennerly on the evening in question and that her evidence that he did was deliberately false and prompted by personal animosity towards him. He asserts that the learned magistrate should have believed his account of events and disbelieved or rejected the material parts in the evidence of Mrs Kennerly. When it was pointed out to him that he did not give evidence denying the assault or Mrs Kennerly's account of events in the course of the trial, his response was that he only did so on the basis of incomplete legal advice without realising the potential consequences of doing so. He adds that in the video record of interview given at the police station he denied that he had assaulted Mrs Kennerly and asserts that the learned magistrate should have accepted that denial and the VROI evidence.

52 As to the assertion that he accepted legal advice not to give evidence he elaborates by saying that his counsel at the time only explained to him that he was not obliged to go into the witness box or to give evidence or be cross-examined without explaining the potential consequences or disadvantages of adopting that position, among which was the loss of the opportunity to have his credit scrutinised by the judicial officer deciding the case, in the setting of the trial where he would have had an opportunity to establish, if he could, his credit; and, further, the risk that, in the absence of direct contradiction by sworn evidence in court, the judicial officer may be more inclined to accept the evidence of the witness for the prosecution as reliable and persuasive. Nor did Mr Strahan appear to have any realisation that, although he had denied the assault in the course of a VROI, that denial might be treated as having less persuasive effect than evidence given in a courtroom under oath or affirmation which was subject to cross-examination.

53 There can, however, be no doubt that the decision that Mr Strahan should not give evidence at his trial was made on his behalf by his counsel after discussions with him and upon his instructions. The decision not to adduce evidence was announced by his counsel in his presence and there was no protest or hesitation about it. The objection now made is not specifically incorporated in the proposed ground of appeal but is a matter to be considered within the scope of the proposed ground which is raised.

54 However, I do not consider that there is any basis upon which it could be contended that the ensuing conviction was unsafe or unsatisfactory because of the decision that Mr Strahan should not give evidence at his trial. In the circumstances of this case there is every appearance that there were good forensic reasons to adopt that approach in

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view of the course of the trial to that point which had involved Mrs Ladhams denying that there had been any such an assault and repudiating the contents of her earlier written statements to the police. As I have already said, that development effectively left the position that the only direct evidence for the prosecution to support the charge was the evidence of Mrs Kennerly herself.

55 In the circumstances, I consider that the course of events can be described in the language used in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124;

Counsel's decision not to adduce evidence of the accused's character was a legitimate choice that a competent counsel could fairly make and, viewed objectively, was a rational tactical decision made to avoid a forensic risk. Hence failure to adduce that evidence did not give rise to a miscarriage of justice.

56 That case, of course, dealt with a failure to adduce character evidence rather than for an accused to give evidence in person but that does not diminish the application and the decision. At [16] Gleeson CJ said:

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.

57 In the circumstances of this case, I see no basis upon which it could be said that the decision and advice of counsel that the applicant should not be called to give evidence created any unfairness in the conduct of the trial in a sense which would give rise to a tenable ground of appeal.

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The video record of interview

58 At the hearing of this appeal the video record of interview of Mr Strahan at the police station at Collie on the evening of 2/3 January 2011 was not available. Indeed, there had been a number of logistical difficulties in locating the exhibits, including the photographs which, however, did come to hand just before the hearing. Mr Strahan, as already noted, had submitted that the learned magistrate should have accepted his denials contained in the VROI rather than the evidence of Mrs Kennerly and that is a submission which called for an examination and an evaluation of the VROI evidence. At the hearing I directed that enquiries be made in an attempt to locate the missing CD containing the VROI and it was then thought that this could probably be located. I informed Mr Strahan that if the VROI became available I proposed to look at it or read any transcript if there was one, and enquired whether he had any objections to this course. Mr Strahan indicated that he did not have any such objection and hoped that that would be done. On being asked whether or not he wished to be heard again after the VROI had been obtained and seen he indicated that he was content for that course to be followed without wishing to make any further submissions or be heard again.

59 In the event, the VROI has been located and I have watched it. There was, however, no transcript. In the meantime, Mr Strahan has written to the court to advise that although he did indicate that he did not wish to be heard again or to make any further submissions about the VROI if it came to hand, he had changed his mind and did wish to have a further opportunity to appear and make submissions about it. In these circumstances, I made arrangements for the video record of interview to be made available for viewing by Mr Strahan and, once viewed, for him to make written submissions as to whether or not he should be heard again.

60 He has since responded with further written submissions which, essentially, set out a series of submissions why he contends that his account in the VROI should have been accepted in preference to the evidence of Mrs Kennerly. He also attempts to set out, for the first time, various alleged facts not mentioned in any previous evidence, to support his denials. Because he did not give evidence at the trial these latest assertions must be disregarded.

61 As to Mr Strahan's contention that more significance should have been attached to his denials of any assault as contained in the video record of interview, they do not found any basis for concluding that the trial was

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unfair, that there was any error of law or that the ensuing result was unfair in the material sense. One of the consequences of not giving evidence in the courtroom was to leave the out of court denials unsupported by oath or affirmation and unresponsive to any particular allegation or inference which might arise from the evidence led or submissions made in the course of the trial. Again that is a consequence of a tactical decision made.

62 To contend that the learned magistrate should have preferred Mr Strahan's denials in the VROI in relation to the sworn evidence of Mrs Kennerly at the trial, without any reason of substance to support that bold assertion, is to go nowhere. The learned magistrate is charged with the responsibility of deciding what credit to give to all of the evidence and he had the advantage of seeing the witnesses who did give evidence and assessing the plausibility of the out of court denials against the facts which were established to his satisfaction to the requisite degree of proof. His decision was based on credit and observation and nothing has been suggested or, still less demonstrated, to show that it was wrong.

63 Accordingly, I consider that there are no reasonable prospects of success on the ground proposed for the appeal against conviction. The result must be that leave to appeal on that ground is refused and the appeal against conviction is deemed to be dismissed.




Application for leave to appeal against sentence

64 The proposed grounds of appeal for which the applicant is seeking leave to appeal against sentence have already been set out. In short, he seeks to contend that the learned sentencing magistrate erred in the exercise of sentencing discretion and in the result by imposing an immediate gaol term rather than a suspended sentence. He further seeks to contend that the sentence was in any event manifestly excessive because of his lack of any prior record for assault, his gainful employment and work reputation, his role as a carer for Mrs Ladhams and because of all the circumstances of the case.

65 The fact that Mr Strahan had never been previously convicted for an offence involving violence or assault was noted by the learned magistrate and taken into account. It was on this basis that his Honour reduced the initial head sentence of 30 months' imprisonment to 24 months' imprisonment before reducing it further because of time spent in custody before sentence. However, that is not to say that the applicant was a person of previous good character. He had a number of prior convictions and had served a previous term of imprisonment in respect of some of

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them. He was aged 39 years at the date of sentence and, therefore, could not be described as either young or a first offender. His Honour also specifically noted Mr Strahan's role as a carer for Mrs Ladhams and the fact that he had a good employment record and a position available for immediate engagement if he were free to take it up. It is not possible, therefore, to say that any of these factors was overlooked by the learned sentencing magistrate. Rather, they were specifically addressed, acknowledged and evaluated. For error to be demonstrated in the sentencing process, therefore, it would be necessary to establish that notwithstanding that these matters were addressed, the sentencing disposition was entirely disproportionate in the sense of being outside the range of any acceptable sentence which could have been imposed in the circumstances.

66 With respect, it seems that the key to understanding the approach to sentencing adopted by his Honour, and the sentence imposed, is the view which his Honour took that this was a particularly serious assault, which continued for some time and occurred in a domestic setting. His Honour also noted that there was no contrition or remorse and that the family dynamics were such that it was likely that the offender would come into contact with the victim from time to time in the future. As already noted, Mrs Kennerly was anxious and apprehensive about any future encounter with the applicant.

67 His Honour noted that the maximum penalty for the offence prescribed by Parliament was 7 years' imprisonment and that the jurisdictional limit available for summary conviction was 3 years' imprisonment. It was this which led him to state that in his view a period of 30 months' imprisonment was appropriate given 'the assault was with significant force, cowardly and protracted'.

68 In Mourish v The State of Western Australia [2006] WASCA 257 the Court of Appeal was reviewing a sentence of 2 years' imprisonment suspended for 2 years for an unlawful assault occasioning bodily harm. In that case, the 33-year-old offender assaulted his partner's sister by grabbing her hair and punching her once in the face so as to cause her relatively minor bodily harm. He had a significant record for assault and problems with anger management. In Mourish Steytler P noted at [1] that the sentence of 2 years' imprisonment was 'at the very top of an acceptable range'. McLure JA noted that weight had been given to a need for personal deterrence in view of the offender's past history. There are certainly differences between the situation under examination in Mourish and the present. Here there is no relevant record of past offending but the

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nature of the assault and its effective consequences, and particularly the lack of remorse, are factors which attracted significant disapproval by the court and which reflected in the sentence imposed. Having regard to this, a sentence of 20 months' imprisonment for this particular offence cannot be described as being outside the range of a sound discretionary exercise although it is still a high sentence. There are factors, already discussed, which led the learned magistrate to consider that such a sentence was required because of the circumstances of the case and, notwithstanding the possibility that a different or lower sentence might have been imposed, I do not consider that this term of imprisonment is entirely disproportionate or such as to justify intervention on appeal.

69 This then raises the question of whether or not, notwithstanding that a period of 20 months' imprisonment was warranted in the circumstances, the sentence might have been suspended. The decision whether or not to suspend a sentence of imprisonment is secondary and sequential to the decision to impose a sentence of imprisonment: Dinsdale v The Queen (2000) 202 CLR 321, 346. That leads to the two-stage approach required in Dinsdale and examined further in Brown v The State of Western Australia [2010] WASCA 228 [36], [40].

70 The submissions advanced by Mr Strahan draw attention to the acknowledgement by the learned sentencing magistrate (ts 20/9/11, page 4) that this was not the most serious offence which the court could contemplate of its kind. Further, it was submitted that when the learned magistrate observed (ts 20/9/11, page 7) 'there is nothing otherwise in your antecedents that would indicate the court should extend to you the benefit of a suspended imprisonment, and furthermore, deterrence in particular, specific deterrence to you, is a significant impact and consideration in the process', his Honour failed to give adequate recognition to option of suspension of a term of imprisonment under pt 11 and pt 12 of the Sentencing Act and that by virtue of s 39(2) a term of imprisonment is not to be imposed unless it is inappropriate to use any of the other options of sentencing such as suspended imprisonment.

71 Implicit in these submissions was a suggestion that the learned magistrate rejected a suspended sentence from the outset and in doing so treated that as an option involving some concessionary benefit. There are some implications in the sentencing observations of his Honour which may create that impression but, with respect, I do not consider that that is what his Honour actually did.

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72 It would, of course, be erroneous to treat the decision to impose imprisonment as determinative to exclude the option of suspended imprisonment. That is firmly established in Dinsdale itself. Even where a decision has been reached that a term of imprisonment is appropriate, even though imprisonment is a sentence of last resort, it is still necessary to engage in the second stage of the test to decide whether, notwithstanding the fact that a sentence of imprisonment is merited, it might be suspended with or without conditions. Read in context, I consider that that is the approach adopted by the learned magistrate in this case, particularly in view of his Honour's observations about the need for specific deterrence, which can only have had reference to his earlier findings about the severity and continuity of the assault and the lack of remorse. The decision to suspend a term of imprisonment, like any other sentencing decision, is discretionary but must be exercised within the framework of the relevant factors bearing upon the exercise of the discretion established by the cases. Again, I do not consider that there has been any error demonstrated in the manner in which this discretion was exercised or anything to justify a conclusion that the refusal to grant a suspended sentence in this case was clearly wrong.

73 Accordingly, while I consider that there are sufficient reasons to grant leave to appeal against sentence on both grounds advanced by Mr Strahan, I do not consider that either should succeed. Accordingly, while there will be a grant of leave to appeal, I consider that the appeal against sentence should be dismissed.