Swift v The State of Western Australia [No 2] - [2024] WASCA 23

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SWIFT -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 23
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   6 FEBRUARY 2024
DELIVERED          :   12 MARCH 2024
FILE NO/S:   CACR 128 of 2023
BETWEEN:   ALISTER SWIFT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARONE DCJ
File Number            :   IND 1791 of 2020

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Unlawful deprivation of liberty - Offences committed in the execution of police officer's duty - Sentences of immediate imprisonment - Whether individual sentences manifestly excessive as to type - Whether sentencing judge erred in finding the need for general deterrence was high - Whether prevalence of a type of offending affects need for general deterrence

Legislation:

Nil

Result:

Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	S Rafferty SC & A Owen
Respondent	:	K C Cook

Solicitors:

Appellant	:	Tindall Gask Bentley Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Dimanopoulos v The State of Western Australia [2011] WASCA 62
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Gok v The Queen [2010] WASCA 185
HSH v The State of Western Australia [2023] WASCA 113
Lee v The State of Western Australia [2022] WASCA 137
Lovell v Lovell (1950) 81 CLR 513
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mallet v Mallet (1984) 156 CLR 605
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Marshall v The State of Western Australia [2008] WASC 99
McIntyre v The State of Western Australia [2016] WASCA 150
Nayna v The State of Western Australia [2016] WASCA 169
Pedersen v The State of Western Australia [2010] WASCA 175
Pflug v The State of Western Australia [2018] WASCA 65; (2018) 272 A Crim R 376
R v Sweeney (1992) 71 CCC (3d) 82
Skipworth v The State of Western Australia [2008] WASCA 64
Smith v The State of Western Australia [2017] WASCA 73
Swift v The State of Western Australia [2023] WASCA 176
The State of Western Australia v AHD [2021] WASCA 13
Vagh v The State of Western Australia [2007] WASCA 17
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

JUDGMENT OF THE COURT:

This is an appeal against sentence.
On 6 April 2023, the appellant was convicted after a trial before Barone DCJ and a jury of one count of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code (WA) (the Code), and one count of deprivation of liberty, contrary to s 333 of the Code. The offences were committed on 22 January 2020, in the course of one incident. At that time, the appellant was a serving police officer with the Western Australia Police Force. The offences were committed in the purported execution of his official duties.
On 10 October 2023, her Honour heard oral sentencing submissions by the parties, which were supported by detailed written submissions. It was submitted by defence counsel that if terms of imprisonment were to be imposed, those terms could be suspended. The prosecutor submitted that the only appropriate disposition for each offence was a term of immediate imprisonment.
On 2 November 2023, the appellant was sentenced to 20 months' immediate imprisonment for the offence of assault occasioning bodily harm (count 1), and 2 years' immediate imprisonment on the count of deprivation of liberty (count 2). Her Honour ordered that the sentences be served concurrently. Accordingly, the total effective sentence was 2 years' immediate imprisonment. The appellant was made eligible for parole. The sentences commenced on the date of their imposition.
On 9 November 2023, the appellant filed a notice of appeal against sentence. On 14 November 2023, the appellant filed an application for bail pending appeal. On 7 December 2023, Hall JA refused the application for bail: Swift v The State of Western Australia.[1] Later, an application for an urgent appeal hearing was granted. The appeal was heard on 6 February 2024. At the conclusion of the hearing, judgment was reserved.
[1] Swift v The State of Western Australia [2023] WASCA 176.
The appellant relies on two grounds of appeal. Shorn of their particulars, ground 1 alleges that the sentencing judge erred in determining that the need for general deterrence was high. Ground 2 alleges, in effect, that the sentences were manifestly excessive as to type, having regard to all relevant factors.
As explained by senior counsel at the hearing of the appeal, the appellant does not challenge her Honour's decision to impose terms of imprisonment for the offences. Rather, by ground 2, the appellant challenges the imposition of terms of immediate imprisonment. He submits that it was open to the sentencing judge to impose terms of suspended imprisonment, and that her Honour was obliged to have done so.
For the reasons that follow, we would dismiss the appeal.

The facts

The sentencing judge made detailed findings of fact, which are not challenged on appeal. These findings were comprehensively summarised by Hall JA in his reasons for decision on the appellant's bail application.[2] For convenience, they are repeated below, with minor amendments.
[2] Swift [10] - [33].
On 22 January 2020, the appellant, then a serving police officer, was on duty with Officer Chapman when they received a call to attend at the house of the victim and her partner. The victim's partner had made a telephone call requesting an ambulance for his partner.[3]
[3] ts 1602.
When the appellant and Officer Chapman arrived, the victim's partner answered the door. He was very quiet and provided little information as to why he had called for an ambulance. The victim came to the door and appeared to be preoccupied. She told the appellant and Officer Chapman that she was simply having an argument with her partner and that police assistance was not needed. The officers separated the victim and her partner to speak to each of them alone. The appellant accompanied the victim to a bedroom.[4]
[4] ts 1602.
The offending conduct commenced whilst the appellant was alone with the victim. He decided to issue a police order to the victim and asked for her full name. There was some confusion regarding the spelling of her surname and the victim became difficult and disparaging towards the appellant. There was arguing back and forth between the two.[5]
[5] ts 1602 - 1603.
Whilst the arguing continued, the appellant pushed the victim through the doorway of the bedroom and said to her, 'You're under arrest'. He then handcuffed the victim and, as she began crying out in pain, he pushed her to the ground. The assault occasioning bodily harm was constituted by four applications of force. This was the first application of force relied upon by the prosecution. It was also the commencement of the period of deprivation of liberty, there being no lawful grounds for arresting the victim.[6]
[6] ts 1604 - 1605, 1614.
Officer Chapman entered the bedroom and saw the appellant handcuffing the victim with her hands behind her. At this time, the victim was yelling and screaming that she was in pain, and, as she became more distressed, started to bang her head out of frustration. Officer Chapman asked the appellant to remove the handcuffs. The appellant declined to do so and replied to the effect that the victim was self‑harming. Officer Chapman gave evidence that the banging of the head was light and appeared to be an act of frustration.[7]
[7] ts 1604 - 1605.
Officer Chapman decided that it was appropriate to remove the handcuffs, which she did. The victim then calmed down and went with Officer Chapman into the ensuite bathroom. Officer Chapman assisted the victim in washing her face and wrists under running water.[8]
[8] ts 1605 - 1606.
The appellant stood at the threshold of the ensuite bathroom and began talking to the victim about a police order and asking for her personal details once again. The victim became upset with the appellant and yelled that she had already provided details, including her name. This led to more arguing between the appellant and the victim, during which they were both speaking in raised voices, verbally abusing each other and swearing. At one point, the victim said, 'I don't care if you give me a police order, I'll probably breach it anyway'.[9]
[9] ts 1606.
The appellant then approached the victim and managed to get one handcuff back on one of the victim's wrists. There was a struggle and the appellant attempted to pull her out of the bathroom whilst she attempted to resist by holding on to a vanity. The appellant told the victim that she was under arrest 'for breaching a police order'. In fact, no such order had been issued. The appellant pulled the victim out of the bathroom and onto a bed. The victim landed on her back, on top of the bed. She was screaming and yelling. The appellant yelled at Officer Chapman to assist him in restraining the victim, but Officer Chapman refused.[10]
[10] ts 1606 - 1607.
The appellant then dragged the victim off the bed, over a box and onto the floor. The appellant then applied the second handcuff, with the victim's hands cuffed in front of her body. In her evidence, Officer Chapman said that she believed at the time that the appellant's actions were unjustified and that she did not want to be a party to the offence being committed by the appellant. These actions constituted the second application of force.[11]
[11] ts 1607.
At this point, the victim was crouched down, seated on the floor with her legs bent in front of her and both hands cuffed. The appellant and the victim were both still screaming and yelling at each other. The appellant told the victim to stand up, but did not give her an opportunity to do so before he started dragging her by the handcuffs along the floor out of the master bedroom and towards the front door. The victim's arms were over her head and the appellant was dragging her behind him with one hand on the handcuffs. These actions constituted the third application of force.[12]
[12] ts 1607 - 1608.
Officer Chapman challenged the appellant by asking him, 'What are you doing?'. At trial, she could not recall if the appellant responded to her. Officer Chapman attempted to help the victim to get up and then tried to hold the victim's leg or bottom so she was not dragging on the ground. In her evidence, Officer Chapman described the victim as looking scared by this point. The appellant dragged the victim by the handcuffs, out of the house and into the driveway area, near the garage.[13]
[13] ts 1608.
Officer Chapman helped the victim to stand up. The victim was still screaming at the appellant, calling him a bully. Officer Chapman confronted the appellant by saying, 'What are you doing? You are out of line' and 'You're out of line. Leave her alone. Get away from her'. The appellant yelled back, 'She's under arrest' to which Officer Chapman responded, 'An order hasn't been issued. She can't be under arrest for anything'.[14]
[14] ts 1608 - 1609.
The appellant was facing the victim, who had her back against the car. He then pushed his forearm into the victim's head, forcing her head against the side of the car. Officer Chapman described this as being 'not a light push', and characterised the force as being about a five out of 10 on a scale of one being a light touch and 10 a heavy touch. This application of force was not relied upon by the State as being one of those that constituted the assault. Nonetheless, a finding was made in respect of it and it formed part of the overall context.[15]
[15] ts 1609.
Officer Chapman then pushed the appellant away and inserted herself between the appellant and the victim. She yelled at the appellant to get away from the victim, that he was out of line, that a police order had not been served and that he needed to walk away. The appellant yelled back at Officer Chapman, telling her off for not following his directions. She then told him to walk away and to get the police car, which he did. In the appellant's absence, Officer Chapman tried to calm the victim, who was crying and saying she could not believe what had happened. She pleaded with Officer Chapman not to let the appellant come near her again.[16]
[16] ts 1609.
The appellant returned in the police car and came back to where Officer Chapman was standing with the victim. The car was fitted with a security pod. The appellant said, 'We're going' and that the victim needed to get into the back of the car. The victim screamed at Officer Chapman to get the appellant away from her.[17]
[17] ts 1610.
Whilst the victim was sitting on the edge of the pod with her feet on the ground, she asked for the handcuffs to be loosened as they were hurting her. Officer Chapman loosened the handcuffs. The appellant then said, 'We need to go' and tried to move the victim into the back of the pod so he could close the door. He then kicked towards the victim's bare feet. Officer Chapman put her feet between the appellant and the victim to protect the latter's feet from the appellant's kicks. The force of the kicks, of which there were about half a dozen, was such that Officer Chapman could feel them through her work boots. This kicking constituted the fourth application of force.[18]
[18] ts 1610.
Ultimately, the victim moved into the pod and the door was closed.[19]
[19] ts 1611.
The appellant reprimanded Officer Chapman for not assisting him and for physically involving herself by blocking his kicks directed at the victim. The appellant, who was the more senior officer, told Officer Chapman that he would be 'taking it further' with a sergeant, indicating he would be complaining about her conduct.[20]
[20] ts 1611.
There was a fifth alleged application of force arising from evidence that the appellant tightened the handcuffs around the victim's wrists when the police car stopped. However, whilst the sentencing judge noted that she did not reject the victim's evidence in this regard, she found that it was not possible to be satisfied beyond reasonable doubt that this application of force had occurred.[21]
[21] ts 1611 - 1612.
The first, second and third applications of force involved handcuffing the victim and dragging her by the handcuffs. The sentencing judge found that the bodily harm inflicted upon the victim's wrists, namely redness and swelling, was caused by the combined effect of these three applications of force.[22]
[22] ts 1612.
The sentencing judge found that the appellant deprived the victim of her liberty from the point of the first application of force, being the placing of handcuffs on her for the first time and moving her to the ground. The deprivation of liberty continued up until the point that the victim arrived at the police station. The appellant did not have a lawful basis for placing the handcuffs on the victim, nor for arresting her for purportedly breaching a police order. The sentencing judge found that no police order ever existed and that the appellant could not have believed that one did exist.[23]
[23] ts 1614.
The sentencing judge found that the appellant's actions were not motivated by personal anger towards, or a desire to punish, the victim. Rather the appellant acted out of frustration, exasperation and irritation with both the victim and the situation, and his actions fell far short of appropriate police conduct. The sentencing judge found that the appellant, despite being an experienced police officer, did not have the skills, nor exercise the patience, required of a police officer in what was 'a difficult and trying situation'. Instead, the appellant allowed his frustration, irritation and exasperation to overcome his judgment.[24]
[24] ts 1615 - 1616.
The sentencing judge found that the victim was vulnerable by reason of the significant power imbalance between her and the appellant. Her Honour also found that it would have been obvious to the appellant during the incident that the victim was psychologically vulnerable.[25]
[25] ts 1617 - 1618.
The sentencing judge accepted that the appellant was a person of prior good character and that there was little to no risk of him reoffending in a similar way. Her Honour also accepted that the appellant had suffered adverse publicity and that any term of imprisonment would be more difficult for him, given his past employment as a police officer.[26]
[26] ts 1624 - 1625.
Her Honour found the following aggravating factors:
(a)The appellant's conduct, which occurred in the execution of his duty as a police officer, involved 'a major breach of public trust'. Her Honour noted that, as a police officer, the appellant had been given specific powers and was trusted to exercise those powers according to law. However, on this occasion he had failed to do so.[27]
(b)The victim was vulnerable because of the imbalance of power between her and a uniformed police officer, who was armed with handcuffs and exercising force against her. She was also vulnerable as a result of the state of her mental health. The sentencing judge observed that it would have become obvious to the appellant during the course of the events that the victim was psychologically vulnerable.[28]
(c)The offending was not fleeting, nor did it occur over a short period of time. Her Honour noted that the deprivation of liberty extended from the time that the victim was first handcuffed until she arrived at the police station, and there was 'more than ample opportunity' for the appellant, during that time, to reflect upon the wrongfulness of his conduct.[29]
(d)The appellant misused his police‑issued equipment, being his handcuffs, in order to assault and unlawfully detain the victim.
(e)The appellant sought to use his rank to dissuade Officer Chapman from intervening, and he tried to stop her from preventing his continuing assault on the victim.[30]
[27] ts 1617.
[28] ts 1617 - 1618.
[29] ts 1618.
[30] ts 1618.

The sentencing judge said that the appellant's conduct could not be described as a slight error of judgment made by a police officer confronted with difficult and challenging circumstances. Rather, her Honour considered that the appellant acted with violence and misused his police powers in the commission of the offences.[31]
[31] ts 1618 - 1619.

The impact of the offending upon the victim

The sentencing judge was not provided with a victim impact statement. Nonetheless, her Honour was satisfied that whatever physical injuries the victim suffered, they would not have caused any long‑term impact and were likely to have healed with the passage of time and without medical intervention. Her Honour, having observed the victim giving evidence at trial, noted that she appeared to be upset and affected by the appellant's conduct. Her Honour reasoned that, based on common sense, the victim would likely have suffered some psychological impact from the offending, noting that she was a person who was already psychologically vulnerable. Her Honour also noted the potential for the appellant's conduct to adversely affect the public's perception of police more generally.[32]
[32] ts 1616 - 1617.

The appellant's personal circumstances

The appellant was 29 years of age at the time of the offending and 33 years of age at sentencing. He was raised in what was described as a 'good family home'[33] with a loving and supportive family. The appellant remains close to his parents, who have both been deeply impacted by the offending. At the time of sentencing, the appellant was in a supportive and loving relationship and was engaged to be married.
[33] ts 1620.

The appellant has no children. He holds a bachelor's degree in science. In 2012, he graduated with distinction and letters of high academic achievement.
The appellant joined the Western Australia Police Force in 2013, having graduated from the police academy with high distinction. He was awarded several certificates, including the highest student award. As a police officer, he served in varying capacities at a number of locations in and around the Perth metropolitan area, including in the Mental Health Co‑Response Team and the Victim Support Unit. In written sentencing submissions, the appellant was described as an experienced police officer, whose role 'has largely focused on the welfare of vulnerable individuals in the community'.[34]
[34] Defence sentence submissions, par 27.
As would be expected, the appellant has no prior criminal history. The character references tendered on his behalf speak highly of the appellant, particularly with regard to his work as a police officer.

The pre‑sentence and psychological reports

As noted by her Honour, the psychological report records that, since being convicted of the offences, the appellant has felt shame and has exhibited significant symptoms of traumatic stress. The psychologist stated that the appellant's self‑identity had been intrinsically linked with his role as a police officer, which afforded him respect from those whom he was close to and from the community. The appellant had developed a sense of pride and purpose in being a police officer.[35]
[35] ts 1619.
The psychologist observed that the appellant's convictions had been 'a significant psychological blow' to him.[36] The psychologist noted the presence of a cognitive dissonance in the appellant's mind, as he was unable to reconcile the nature of his offending with his identity as a person who protected the type of person he had offended against.
[36] ts 1619.
The sentencing judge accepted that the probable loss of the appellant's career as a police officer would be devastating to him, as he had defined his life as one of service as a police officer.[37]
[37] ts 1620.
There is nothing in either report that explains why the appellant behaved as he did on 22 January 2020.

Other aspects of the sentencing remarks

In addition to the aspects of the sentencing remarks that we have already mentioned, her Honour took into account in a manner favourable to the appellant that:
(1)He had made efforts since having been convicted to obtain new vocational skills and qualifications.
(2)He had sought support from the police psychologist and had re‑engaged with his church community.
(3)He had built new relationships, became engaged to his partner, and was planning for his future beyond the police service.
(4)Although his mental health had not been a factor in the commission of the offences, it had been impacted by his own conduct and by his engagement in the criminal justice process.
(5)His day‑to‑day experience in prison would be more onerous than that of someone who was not a former police officer. Her Honour anticipated that it was likely that the appellant would be housed in a protection wing and his movement within the prison would be more limited, which would likely impact on his opportunities to undertake programs and engage in work and other activities. Her Honour accepted that the appellant was likely to experience custody with a greater level of subjective fear of violence or reprisals in the event that other inmates should become aware of his former occupation as a police officer.
Towards the conclusion of her Honour's sentencing remarks, she said that, because there was little to no risk of the appellant reoffending in a violent way in the future, there was little need to impose a personally deterrent sentence. However, her Honour formed a different view as to the importance of general deterrence. Of particular relevance to ground 1, her Honour said:[38]
I am of the view that the need for general deterrence is high.
[38] ts 1626.
Her Honour elaborated:[39]
Police officers are given the power to apply force and detain people that others do not have. These powers come with limits. Those limits exist for very good reasons, including some which strike at the very heart of what we consider to be a civilised community.
[39] ts 1626.
Her Honour endorsed a statement made by McKechnie J, in the context of the disputed admissibility of a police interview, in Marshall v The State of Western Australia:[40]
There is a significant public interest in requiring police officers to firstly know and secondly apply the law relating to their powers and responsibilities.
[40] Marshall v The State of Western Australia [2008] WASC 99 [44].
The sentencing judge continued:[41]
I am of the view that accordingly, there is a strong need for police officers who are given the power to apply force to and to detain others to do so within the confines of those powers.
Police officers must know that to abuse those powers is viewed seriously by the community and will be treated seriously by the court.
As follows from this, of course, and as your counsel concedes, there is a need for the denunciation of police officers and in this case you, [the appellant], and your conduct, to police officers who misuse the powers that they are given by the State over people and who are thereby abusing their position of trust.
[41] ts 1627.
Of relevance to ground 2, her Honour noted the submission made by defence counsel on behalf of the appellant that he should be placed on a conditional release order, or, alternatively, a conditional term of suspended imprisonment.[42] Her Honour rejected the submission that a sentence other than imprisonment should be imposed. She found that a term of imprisonment was the only appropriate disposition.[43]
[42] ts 1627.
[43] ts 1627.
After imposing a term of 20 months' imprisonment on count 1 and 2 years' imprisonment on count 2, her Honour then turned to consider the issue of totality. Her Honour observed that there was a significant degree of overlap between the counts, and that they were committed as 'part of the one transaction'. Her Honour ordered that the terms of imprisonment be served concurrently.
Finally, her Honour considered whether the terms of imprisonment should be suspended. In accordance with the principles set out in Dinsdale v The Queen,[44] her Honour took 'a second look' at all of the relevant sentencing factors.[45] Her Honour acknowledged that it was, in effect, a serious step to send an offender to gaol for the first time, particularly where that offender was of prior good character, had a history of service to the community, and showed little prospect of reoffending. Her Honour said that she was mindful that to require the appellant to serve a term of immediate imprisonment may have a negative effect on his mental health.[46] Nevertheless, her Honour imposed terms of immediate imprisonment. The sentencing judge explained her reasoning for doing so as follows:[47]
However, in my view, the need for punishment, general deterrence and the seriousness of your offending lead me to the conclusion that to suspend any term of imprisonment, whether wholly or partially, would be simply inappropriate.
Your breach of the trust that the community of Western Australia placed in you as a police officer combined with your offending having continued despite another officer verbally and physically intervening in an attempt to stop your offending and, of course, combined with everything I have already said about the nature and seriousness of your offending generally, lead me to a conclusion that to suspend the term in any manner would not be appropriate. You will therefore be required to serve the term immediately.
[44] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
[45] ts 1628.
[46] ts 1628.
[47] ts 1629.

Ground 1 - did her Honour err in determining that the need for general deterrence was high?

Ground 1 - the submissions

The appellant's submissions in support of ground 1 largely reflect the particulars to the ground, which are as follows:
1.1It is accepted that general deterrence was a relevant factor in determining an appropriate sentence, however there was nothing before the Court which suggested that there was such a large number of sufficiently similar cases that elevated the need for general deterrence to the level indicated by the sentencing Judge.
1.2There were no other factors relating to the offending behaviour that required an elevation of the need for general deterrence to the level adopted by the sentencing Judge.
1.3In combination with other factors, the degree of need for general deterrence was a significant factor in the sentencing Judge determining that a sentence of immediate imprisonment was the only appropriate sentencing disposition.
1.4The specific error identified materially impacted on the conclusion that only a term of immediate imprisonment was appropriate.
In oral submissions, it was submitted on behalf of the appellant that her Honour's statement that 'the need for general deterrence is high', constituted an express error, and was not a mere weighting error. Senior counsel for the appellant submitted that this finding was based on the appellant's position as a police officer, which had already been taken into account by her Honour as the basis for finding that the appellant's offending was aggravated because it constituted a breach of the trust reposed in police officers. In this way, the appellant contended, her Honour erred by giving 'double consideration' to this factor.[48]
[48] Appeal ts 52.
Counsel for the appellant emphasised the 'unusual' circumstances of the case and the fact that the type of offending the appellant had engaged in is not prevalent in the community. Accordingly, it was submitted that general deterrence was not a matter of great significance in the sentencing of the appellant.
The respondent submitted that her Honour made no express error. It argued, in effect, that ground 1 is no more than an allegation of a weighting error, which is not a valid ground of appeal.
In any event, having regard to the circumstances of the offending and, in particular, that the appellant was a police officer acting in the purported execution of his duty, general deterrence is plainly a relevant and important sentencing consideration, which was correctly given considerable weight by the sentencing judge.

Ground 1 - disposition

Ground 1 has not been made out.
As the High Court recognised in Veen v The Queen (No 2),[49] general deterrence (that is, the theory that imposing legal sanctions on actual offenders will discourage potential offenders)[50] is one of the purposes of criminal punishment, together with the protection of society, deterrence of the offender personally, retribution, and reform. These purposes overlap and cannot be considered in isolation.
[49] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson & Toohey JJ).
[50] R v Sweeney (1992) 71 CCC (3d) 82, 98 (Wood JA).
The sentencing of an offender requires a sentencing judge to embark on a process of instinctive synthesis that takes into account all of the relevant factors to reach a single result, which balances many different and conflicting features.[51]
[51] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75] (Gaudron, Gummow & Hayne JJ). See also Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [37] (Gleeson CJ, Gummow, Hayne & Callinan JJ).
The question of whether any and, if so, how much weight is to be given to general deterrence (along with any other relevant sentencing factors) in any particular case depends upon its own facts and circumstances, whilst always bearing in mind that the overriding principle is that any sentence must be commensurate with the seriousness of the offence.[52]
[52] See s 6(1) of the Sentencing Act 1995 (WA).
General deterrence is emphasised as a primary consideration in the sentencing of various offences, including, for example, serious drug offences,[53] sexual offences committed against children,[54] and offences of stealing as a servant.[55] In some cases, general deterrence is of limited relevance, if any at all. For example, in some cases involving an offender with a psychological disorder or mental impairment, general deterrence will, depending upon the nature and extent of the disorder or impairment, be accorded no weight or may be 'sensibly moderated'.[56]
[53] See, for example, Wong [73].
[54] See The State of Western Australia v AHD [2021] WASCA 13 [56] (Buss P).
[55] See Dimanopoulos v The State of Western Australia [2011] WASCA 62 [19] (McLure P & Buss JA).
[56] Gok v The Queen [2010] WASCA 185 [59] (Mazza J, McLure P & Buss JA).
As expressed, and contrary to the appellant's submissions, ground 1 alleges no more than that the sentencing judge gave excessive weight to general deterrence and does not raise a valid complaint of express error. The ground does not allege that general deterrence was irrelevant to the appellant's sentencing. To the contrary, counsel for the appellant expressly accepted that general deterrence was a relevant sentencing factor.[57]
[57] Appeal ts 49.
Consistently with High Court authority, such as in Lovell v Lovell;[58] Mallet v Mallet;[59] and Dinsdale,[60] this court has repeatedly held that a failure to give adequate weight, or the giving of excessive weight in the sentencing discretion, does not constitute an express appellable error, unless it amounts to a failure to exercise the discretion at all.[61] The reasons for this conclusion were explained in Gelmi, as follows:[62]
The assertion in two of the particulars of the ground of appeal that the trial judge gave 'insufficient weight' to some sentencing factors is misconceived. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet; Dinsdale v The Queen; Vagh v The State of Western Australia; Pedersen v The State of Western Australia.[63] A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
[58] Lovell v Lovell (1950) 81 CLR 513, 519 (Latham CJ), 533 (Kitto J).
[59] Mallet v Mallet (1984) 156 CLR 605, 614 (Gibbs CJ).
[60] Dinsdale [26] (Gaudron & Gummow JJ).
[61] See, for example, Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts‑Smith JA), [76] (McLure JA); Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81] (Quinlan CJ, Buss P & Mazza JA); Lee v The State of Western Australia [2022] WASCA 137 [72] ‑ [75] (Buss P, Mitchell JA & Livesey AJA); HSH v The State of Western Australia [2023] WASCA 113 [188] (Buss P).
[62] Gelmi [81].
[63] Pedersen v The State of Western Australia [2010] WASCA 175.
In any event, even if the allegation in ground 1 did constitute an allegation of express error on the part of the sentencing judge, it has no merit. General deterrence is an important sentencing consideration in the present case. As found by the sentencing judge, the appellant committed the offences in the execution of his official duties and his actions involved 'a major breach of public trust'. Public trust in the police force is crucial to its ability to undertake the functions of protecting the community, investigating alleged offences, and bringing offenders to justice. The ability of the police force to effectively perform these functions is undermined when police officers, in the execution of their duties, seriously depart from or abuse the powers given to them by law. With these considerations in mind, general deterrence is an important consideration in the sentencing of police officers for offences that involve the abuse of their powers of arrest and detention. In the context of the present case, it is important that the sentences imposed send a clear message to other serving officers that behaviour of the kind engaged in by the appellant will be met with a strong response, with the object of ensuring it is not repeated.
We do not accept counsel for the appellant's submission that general deterrence is not a matter of importance because the offences committed by the appellant are not prevalent. While the prevalence of a particular type of offending may be a reason to give greater weight to general deterrence, general deterrence is not dependent upon the offence being prevalent. Offences committed by police officers in the execution of their duty are, thankfully, not prevalent. However, general deterrence is an important way to preserve and maintain the high standards expected of police officers, and, indeed, members of other occupations and professions in which the public repose high standards of trust, such as legal practitioners and teachers.
Nor do we accept the 'double consideration' argument referred to in [54] above. A sentencing factor may be relevant for one or more purposes. In the present case, the breach of trust was relevant in assessing the appellant's moral culpability, as well as the question of general deterrence. Her Honour made no error in considering the appellant's breach of trust in both of these ways.
For these reasons, ground 1 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 2 - were the sentences manifestly excessive as to type?

By ground 2, the appellant alleges, in essence, that the sentences imposed on counts 1 and 2 were manifestly excessive; not as to length, but as to type. The appellant contends that upon an examination of all the relevant facts and circumstances of the case, it remained reasonably open to the sentencing judge to impose terms of suspended or conditionally suspended imprisonment, and, accordingly, it was inappropriate to impose terms of immediate imprisonment.

Ground 2 - legal principles

The legal principles applicable to ground 2 are well‑established and were described as follows in Pflug v The State of Western Australia:[64]
[64] Pflug v The State of Western Australia [2018] WASCA 65; (2018) 272 A Crim R 376 [40] - [53].
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing 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.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[65]
[65] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
By s 6(4) of the Sentencing Act:
'A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.'
Section 76 of the Sentencing Act provides, relevantly:
'(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.'
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[66] Fogg v The State of Western Australia.[67]
The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. See Dinsdale v The Queen. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale [86].
The critical question in an appeal such as the present is whether it was reasonably open to the sentencing judge to be positively satisfied that suspended or conditionally suspended imprisonment was not an appropriate sentencing option having regard to the facts and circumstances of the particular case and all relevant sentencing factors and principles. See McIntyre v The State of Western Australia;[68] Nayna v The State of Western Australia;[69] Smith v The State of Western Australia.[70]

Ground 2 - the submissions

[66] Skipworth v The State of Western Australia [2008] WASCA 64.

[67] Fogg v The State of Western Australia [2011] WASCA 11.

[68] McIntyre v The State of Western Australia [2016] WASCA 150.

[69] Nayna v The State of Western Australia [2016] WASCA 169.

[70] Smith v The State of Western Australia [2017] WASCA 73.

On behalf of the appellant, it is submitted that there are a number of extenuating features of the appellant's offending, including that:
(a)when the appellant arrived at the victim's house, he was confronted with a very difficult situation, which he had little information about, and he found himself confronted by the victim, who was uncooperative and verbally abusive;
(b)the appellant acted out of a sense of frustration, exasperation, and irritation, and not out of anger or any sense of malice;
(c)the physical injuries suffered by the victim were at the very lowest end of the range of seriousness that could constitute bodily harm; and
(d)while the appellant did not have the mitigation that pleas of guilty would have brought, the mitigating factors that were present, in combination, strongly supported the conclusion that a suspended term of imprisonment or a conditionally suspended term of imprisonment was open.
The respondent submitted, in effect, that for the reasons given by the sentencing judge, despite the mitigating factors, nothing short of immediate imprisonment would be an appropriate sentence, having regard to the facts and circumstances of the case.

Ground 2 - disposition

The maximum penalty for count 1 is 5 years' imprisonment and for count 2 is 10 years' imprisonment.
As to the seriousness of the offending:
(a)There were, as described earlier in these reasons, four separate applications of force.
(b)Although not relied upon by the State as an application of force that comprised part of the assault, the appellant also pushed his forearm into the victim's head, forcing her head against the side of the car.
(c)The seriousness of the appellant's offending escalated after the first application of force.
(d)Officer Chapman intervened, endeavoured to reason with the appellant, urged him to stop interacting with the victim and told him that there was no basis for arresting the victim. The appellant disregarded Office Chapman's advice.
(e)During the fourth application of force the appellant kicked Officer Chapman.
(f)The sentencing judge found that there was more than ample opportunity (even after the first application of force) for the appellant to reflect upon his conduct and its wrongfulness.[71]
(g)The sentencing judge found that the appellant sought to use his rank to dissuade Officer Chapman from intervening and trying to prevent the appellant continuing his assault upon the victim.[72]
(h)The appellant sought to intimidate Officer Chapman by informing her, in effect, that he would be making a complaint about her conduct to a more senior officer.
(i)The appellant could never have believed that there was a lawful basis to handcuff the victim or to arrest her. The sentencing judge found that the appellant tried to arrest the victim for breaching a police order that he well knew did not exist and he could never have believed did exist.[73] Her Honour found in effect that, despite being an experienced police officer and senior to Officer Chapman, the appellant did not have the skills nor exercise the patience required of a police officer in a difficult and trying situation.[74] Her Honour found that the appellant had allowed his frustration, irritation and exasperation to overcome his judgment.[75] However, her Honour was not satisfied beyond reasonable doubt that the appellant was motivated by any personal anger towards the victim.[76] Her Honour said that the appellant was not attempting to punish the victim for any wrong that she had done to the appellant personally.[77]
(j)The victim was vulnerable by reason of both the significant power imbalance between her and the appellant, and her mental health. The sentencing judge found that it would have been obvious to the appellant during his interaction with the victim that she was psychologically vulnerable.[78]
(k)Neither the pre‑sentence report nor the psychological report indicate that, at the material time, the appellant was suffering from some emotional difficulty or crisis in his ordinary work life or his personal life that might explain his offending conduct.
(l)The appellant's actions escalated the situation with the victim, heightening her anxiety and reactivity.
[71] ts 1618.
[72] ts 1618.
[73] ts 1615.
[74] ts 1616.
[75] ts 1615 ‑ 1616.
[76] ts 1615.
[77] ts 1615.
[78] ts 1618.
The sentencing judge found that the bodily harm inflicted upon the victim's wrists, namely redness and swelling, was caused by the combined effect of the first, second and third applications of force.[79] Her Honour was satisfied that whatever physical injuries the victim suffered would not cause her any long‑term injury or physical impact.[80] Her Honour did not have any direct report of any psychological impact upon the victim, but said that it was 'common sense to expect that there has been some'.[81]
[79] ts 1613 ‑ 1614.
[80] ts 1616.
[81] ts 1616.
The appellant did not have the mitigation that pleas of guilty would have brought. The sentencing judge found that, based on the manner in which the appellant gave evidence at trial, he did not evince any remorse, did not accept any responsibility for his offending conduct, and maintained that he had done nothing wrong.[82]
[82] ts 1622 ‑ 1623.
The appellant was aged 29 at the time of the offending and was aged 33 when sentenced.
The appellant was of prior good character. He had a record of service to the community both within and outside the Western Australia Police Force. He bore little to no risk of reoffending. Prison will be more difficult for the appellant because of his status as a former police officer. The appellant obtained new skills and qualifications post‑conviction. He sought support from the police psychologist after the offending incident and had re‑engaged with his church community. The appellant has experienced feelings of shame over his conviction and has felt a loss of identity. He is not otherwise a violent person. In her report, the psychologist indicated that the appellant had developed an adjustment disorder, with mixed anxiety and depressed mood, after the offending.[83]
[83] ts 1624 ‑ 1625.
In our opinion, the sentencing judge was correct to find that 'the need for general deterrence is high'.[84] It was necessary to properly mark the gravity of the appellant's offending by imposing a sentence that should discourage other police officers from engaging in similar offending conduct.
[84] ts 1626.
As to suspension, a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. The discretion to suspend or conditionally suspend is not confined by considerations relating to rehabilitation and mercy. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.
The sentencing judge was of the view that to suspend either of the terms of imprisonment, whether wholly or partly, would be inappropriate.[85]
[85] ts 1629.
In our opinion, the individual sentences for count 1 and count 2 and the total effective sentence of 2 years' imprisonment are at the upper end of the range of sentencing outcomes that were open to the sentencing judge on a proper exercise of her discretion. However, the length of the terms for count 1 and count 2, and the length of the total effective sentence are not challenged. Nor are her Honour's findings of fact.
We acknowledge that police officers, in the execution of their duties, face situations that are often unpredictable, stressful, and confronting. Although in the present case, the victim was, at times, abusive and difficult, her behaviour could in no way justify the appellant's completely disproportionate response. Whilst the physical injuries suffered by the victim were minor, she was subjected to a prolonged ordeal at the hands of the appellant, who persisted in his abuse of her despite the repeated interventions of his colleague, Officer Chapman. Ultimately, those interventions were responded to by the appellant with intimidation.
The appellant was an experienced police officer, who had particular experience dealing with vulnerable individuals in the community. His offending is not explained or mitigated by any psychological disorder. He acted out of frustration and exasperation, feelings which, as a police officer, he could and should have controlled and which do not mitigate his offending.
When considered together, the mitigating factors were of considerable weight. However, in our opinion, the seriousness of the offending and the need for general deterrence are such that immediate imprisonment was the only appropriate disposition.
After evaluating the individual sentences for counts 1 and 2 and the total effective sentence in the context of:
(a)the maximum penalties;
(b)the objective facts and circumstances of the offending;
(c)the standards of sentencing customarily observed with respect to offences of the kind in question;
(d)the place which the appellant's offending occupies on the relevant scales of seriousness;
(e)the aggravating factors; and
(f)the appellant's personal circumstances and antecedents and all other mitigating factors,
we are of the opinion that it was reasonably open to the sentencing judge to be satisfied that it was inappropriate to impose conditionally suspended imprisonment, suspended imprisonment or partly suspended imprisonment.
Her Honour was entitled to be positively satisfied that it was not appropriate to conditionally suspend, suspend or partly suspend the terms of imprisonment she imposed for counts 1 and 2.
We would grant leave to appeal on ground 2, but the ground has not been made out.

Conclusion and orders

Neither ground of appeal has been made out. The appeal must be dismissed. The orders we would make are:
1.Leave to appeal on ground 1 is refused.
2.Leave to appeal on ground 2 is granted.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
12 MARCH 2024