Tait v Le Boydre
[2018] WASC 231
•31 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TAIT -v- LE BOYDRE [2018] WASC 231
CORAM: MCGRATH J
HEARD: 26 JULY 2018
DELIVERED : 31 JULY 2018
FILE NO/S: SJA 1005 of 2018
BETWEEN: DANIEL THOMAS TAIT
Appellant
AND
FELICIA ANNE LE BOYDRE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B C GLUESTEIN
File Number : PE 53999/2017
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Section 317(1)(b) of the Criminal Code (WA) - Implied error of law - Sentence manifestly excessive - Express errors of law - Leave to appeal granted - Appeal allowed
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9, s 9(1), s 9(2), s 14
Criminal Code (WA), s 317(1)(b)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA, s 76(1), s 76(2)
Result:
Leave to appeal granted on grounds 1, 2 and 4
Grounds 1, 2 and 4 upheld
Appeal allowed
Sentence set aside
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Mr B Murray |
Solicitors:
| Appellant | : | Justine Fisher Barrister & Solicitor |
| Respondent | : | The Director of Public Prosecutions for WA |
Case(s) referred to in decision(s):
Billington v Depetro [2018] WASC 171
Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Holden v The State of Western Australia [2009] WASCA 50
IEB v The State of Western Australia [2015] WASCA 207
Johnson v Hayter [2001] WASCA 118
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sartori v The State of Western Australia [2014] WASCA 98
MCGRATH J:
Mr Tait was charged with one offence of unlawful assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code (WA). Mr Tait pleaded guilty at the first reasonable opportunity and was sentenced in the Magistrates Court. Mr Tait now seeks leave to appeal against the sentence imposed. Mr Tait contends that the magistrate made express errors of law at sentencing and further, imposed a sentence that was manifestly excessive. I agree.
For the following reasons, I have determined that leave to appeal should be granted and the appeal must be allowed.
In these reasons for decision, I will consider the following:
(a)The charge.
(b)The Magistrate Court proceedings.
(c)The grounds of appeal.
(d)An assessment of the merits of the appeal.
The charge
The Prosecution Notice dated 30 September 2017 pleads that Mr Tait unlawfully assaulted another and thereby did him bodily harm contrary to s 317(1)(b) of the Criminal Code.
The Magistrates Court proceedings
On 2 February 2018, Mr Tait appeared before his Honour in the Magistrates Court. Mr Tait was represented by a legal practitioner. The magistrate read the charge to Mr Tait and he pleaded guilty to that charge.[1]
[1] ts 2.
The facts, which were not disputed by Mr Tait, were read to the court in the following terms:[2]
The facts are it was 11.15 pm on Friday, 7 August 2017. The accused ‑ sorry, the victim was with his girlfriend at the Blue Flamingo bar located in Leederville. The victim stood adjacent to the dancefloor area next to his girlfriend when the accused approached him. The accused and the victim began a brief conversation whereby the accused blamed the victim for a verbal insult of a mutual associate.
The accused suddenly raised his right arm and punched the victim to the face with a clenched fist, connecting with the victim's left eye. The - he continued to punch the victim two or three times whilst the victim lost consciousness as a result of this action. The accused continued to punch the victim six to eight times using a clenched fist as he fell and remained on the floor.
The victim was unable to defend himself and received punches to the face while unconscious. As a result of the flurry of punches the victim received facial fractures requiring surgery. The incident occurred for a few seconds before the accused was separated by nearby people and security staff. Eyewitnesses accounts the victim as being unconscious (indistinct) for approximately 10 seconds. The accused was removed from the venue by security and left the area.
The victim left the venue and was conveyed to hospital. The victim received ongoing medical treatment as well as surgery aforementioned. He's - 27 September, sir, he has attended the Perth Police Station on request of police. On arrival he was arrested. He participated in a video record of interview. They are the facts.
[2] ts 2 ‑ 3.
Mr Tait was represented by counsel who delivered a plea in mitigation submitting that any term of imprisonment should be suspended.[3] The prosecutor submitted that a suspended term of imprisonment was within the magistrate’s sentencing discretion.[4]
[3] ts 8.
[4] ts 9.
The magistrate found that Mr Tait's offending was aggravated by the persistence of the assault, though it occurred over a very brief period of time.[5] The magistrate found that there was an interaction between Mr Tait and the complainant which may have included 'language being exchanged'.[6] The magistrate found that the assault was 'unprovoked and a serious assault warranting a term of imprisonment'.[7] His Honour stated that there should be 'a strong emphasis on personal deterrence as well as general deterrence'.[8]
[5] ts 9.
[6] ts 9 ‑ 10.
[7] ts 10.
[8] ts 10.
The magistrate imposed a term of imprisonment of 18 months and declined to suspend that term.[9]
[9] ts 10.
Appeal
The grounds of appeal are in the following terms:
1.The learned Magistrate erred in law by taking into account the wrong maximum penalty for the offence charged.
2.The learned Magistrate erred in law by failing to take into account any mitigating factors other than the fact that the appellant had entered a plea of guilty.
3.The learned Magistrate erred in fact in finding that the appellant's assault on the complainant was 'unprovoked'.
4.The learned Magistrate erred in imposing a sentence that was manifestly excessive.
Particulars of Ground 4
The sentence of 18 months' imprisonment to be immediately served was plainly unreasonable and unjust, both as to the type of sentence imposed and as to its length, having regard to the maximum penalty for the offence, the place that it occupied on the scale of seriousness, the standards of sentencing customarily imposed for such offences, and the appellant's personal circumstances.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[10] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[11]
[10] Criminal Appeals Act 2004 (WA), s 9(1).
[11] Criminal Appeals Act, s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[12]
[12] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[13]
[13] Criminal Appeals Act, s 14.
Grounds one to three contend that the magistrate made express errors in his sentencing remarks.
Ground four contends that the sentence imposed was manifestly excessive. The ground therefore asserts implied error.
In considering this ground of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[14]
[14] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Assessment of the merits of the appeal
I will now consider each ground of appeal.
Ground one
By ground one, Mr Tait contends that the magistrate erred in law by taking into account the wrong maximum penalty for the offence. The respondent concedes this ground of appeal.[15] That concession is appropriately made. The magistrate stated that the maximum penalty for the offence was 7 years imprisonment, and that the jurisdictional limit of the Magistrates Court for the offence was 3 years imprisonment.[16] However, the maximum penalty for the offence charged was 5 years imprisonment and the jurisdictional limit was 2 years imprisonment or a fine of $24,000. The magistrate appears to have erroneously referred to the maximum penalty for the offence proscribed by s 317(1)(a) of the Criminal Code rather than s 317(1)(b) which is the offence charged.
[15] Respondent’s Submissions, dated 17 July 2018 [4].
[16] ts 7, 9.
The failure to take into account the correct maximum penalty for an offence constitutes an error of law.[17] Accordingly, leave is granted in respect of ground one and the ground is upheld.
Ground two
[17] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
By ground two Mr Tait contends that the magistrate erred in law by failing to take into account any mitigating factors other than the fact that Mr Tait had entered a plea of guilty. The respondent concedes this ground of appeal. That concession is appropriately made.
The magistrate in his sentencing remarks stated that 'the appropriate term is a term of 24 months with a 25% discount ends up with an immediate term of imprisonment of 18 months'.[18] Therefore, his Honour imposed an 18 month term of imprisonment. Accordingly, it must follow that the magistrate made no reduction for additional mitigating factors, or that mitigating factors were taken into account to arrive at the term of 24 months and that the discount pursuant to s 9AA was then applied. If the magistrate failed to give a reduction for the other mitigating factors then that was an error of law. If the magistrate had taken the mitigating factors into account in determining a term of 24 months and then applied s 9AA then that was an error of law. The reduction must be applied to the head sentence before the other mitigating circumstances are taken into account.[19]
[18] ts 10.
[19] IEB v The State of Western Australia [2015] WASCA 207 [9].
The magistrate did not refer to the other mitigating factors at all in his sentencing remarks. In his sentencing remarks the magistrate observed that the guilty plea was the strong mitigating factor. His Honour then turned to the aggravating factors.[20] I find that the magistrate failed to take the other significant mitigating factors into account, other than the discount for the plea of guilty. There are a number of mitigating factors including good character, remorse and victim empathy, acceptance of responsibility, youth and very good prospects for rehabilitation. I will consider the other factors in mitigation when I determine ground four.
[20] ts 9.
Accordingly, leave is granted in respect of ground two and the ground is allowed.
Ground three
Mr Tait contends that the magistrate erred in finding that the assault on the complainant was unprovoked. The magistrate in his sentencing remarks stated that there was a minor incident at a night venue involving 'some issue concerning the victim and perhaps some language exchanged'.[21] His Honour found that 'this is, in my view, an unprovoked and a serious assault'.[22] The facts upon which Mr Tait pleaded stated that the complainant stood adjacent to the dancefloor when Mr Tait approached him. At that time a brief conversation commenced during which Mr Tait blamed the victim for a verbal insult of a mutual associate.
[21] ts 9 ‑ 10.
[22] ts 10.
This ground arises from a submission made in mitigation that Mr Tait had reacted to 'several somewhat provocative remarks' that were made by the complainant.[23] During discourse there were interchanges between counsel and the magistrate concerning the issue of provocation.[24] It was accepted by counsel for Mr Tait that the defence of provocation was not being relied upon but rather provocation as a circumstance of the offending.[25] It is contended that the magistrate failed to give notice to Mr Tait that he was not accepting the submission, and that therefore Mr Tait was not afforded an opportunity to adduce evidence in support of that submission.[26]
[23] ts 4.
[24] ts 4, 5, and 6.
[25] ts 5.
[26] Sartori v The State of Western Australia [2014] WASCA 98 [16].
I do not accept that the magistrate made the error asserted. Mr Tait approached the complainant and blamed the complainant for a verbal insult of a mutual associate. The complainant was, at that time, not in the company of Mr Tait but stood with his girlfriend adjacent to the dancefloor. It appears that the complainant responded to the accusation by an insult described by the magistrate as 'some language exchanged'.[27] I do not accept that the assault was provoked by the complainant. Mr Tait initiated the contact with the complainant by moving towards the complainant and confronted him with an accusation. The magistrate accepted that the complainant responded with strong language. I accept the respondent's characterisation of those circumstances as amounting to a gross overreaction by the complainant.[28] Certainly, the interaction explains the reasons underlying the assault. This is not a random act of violence inflicted on a stranger. Mr Tait and the complainant each responded to the other but it was Mr Tait that grossly overreacted with the assault. Ground three must fail and therefore leave to appeal is not granted on this ground.
Ground four
[27] ts 10.
[28] Respondent's submissions dated 17 July 2018 [17].
Mr Tait complains that the sentence imposed was manifestly excessive.
That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[29]
[29] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Tait contends that the length of the sentence was manifestly excessive and that the wrong type of sentence was imposed in that any term of imprisonment should have been suspended.
To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[30]
[30] Sentencing Act1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
The maximum penalty for the offence of assault occasioning bodily harm is 5 years' imprisonment and 2 years' imprisonment when the offender is dealt with summarily. Whilst the maximum sentence that the magistrate could impose was one of 2 years' imprisonment, it is relevant to have regard to the statutory maximum and not merely the jurisdictional limit in assessing the seriousness of the offence.[31]
[31] Johnson v Hayter [2001] WASCA 118.
The assault was not planned or premeditated but was a spontaneous act of violence after a verbal interaction between Mr Tait and the complainant. The offending is serious, involving a persistent assault comprising numerous punches to the complainant. The initial act of violence comprised Mr Tait raising his right arm and punching the complainant with a clenched fist to his face which struck his left eye. Mr Tait continued to strike the complainant another two to three times. Despite the complainant losing consciousness and falling to the floor during the course of the assault, Mr Tait continued to assault the complainant by striking the complainant a further six to eight times.
The assault caused the complainant to suffer facial fractures which required surgery. The complainant has received ongoing medical treatment.[32] However, there does not appear to be any long term issues.
[32] ts 3.
There were a number of factors in mitigation including Mr Tait's youth, being 22 years of age at the time of the offending, his good character (with no criminal convictions), remorse and his sound prospects for rehabilitation. Mr Tait is a young man with a strong employment history and who is currently employed. The references provided to the magistrate support a finding that Mr Tait is a productive young man who is well thought of in the community.
The magistrate did not make any finding regarding remorse. However, there was material before the magistrate that fully supported a finding of remorse and further, empathy for the complainant. Mr Tait has expressed his remorse in a letter to the complainant dated 24 January 2018. Further, a number of written references referred to the expressions of remorse by Mr Tait. I find that Mr Tait is remorseful.
In this case, youth is a significant mitigating factor. It is the case that courts do not ordinarily impose a term of imprisonment on young or youthful offenders of prior good character without considerable pause and reflection.[33] However, the question remains whether this offending is so serious that, despite the youth and other mitigating factors, the only appropriate disposition is an immediate term of imprisonment.
[33] Fogg v The State of Western Australia [2011] WASCA 11 [13].
The magistrate recognised the plea as a factor in mitigation and afforded Mr Tait a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).
There is no identifiable tariff for the offence of assault occasioning bodily harm. Mr Tait and the respondent[34] relied on to the cases referred to in Billington v Depetro[35] and Holden v The State of Western Australia.[36] I have considered those cases. In Holden v The State of Western Australia[37] a range of sentences from 6 months suspended imprisonment to 2 years immediate imprisonment was identified. That range of sentences is also appropriate for sentences imposed by magistrates. Whilst the decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender’s antecedents. In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[38]
[34] Respondent's Submissions, dated 17 July 2018 [19].
[35] Billington v Depetro [2018] WASC 171 [113] ‑ [137].
[36] Holden v The State of Western Australia [2009] WASCA 50.
[37] Holden v The State of Western Australia [43].
[38] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54].
I have determined that the length of the term of imprisonment was manifestly excessive. Mr Tait has a number of significant factors in mitigation. The mitigating factors were not taken into account by the magistrate. After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors, I am satisfied that leave should be granted and that ground four should be upheld. I will consider the type of sentence that should be imposed and in particular, the question of suspension when resentencing Mr Tait.
Resentencing
Given that grounds one, two and four have been allowed the discretion of the court to resentence has been enlivened. At the hearing of the appeal counsel for Mr Tait submitted that a fine is an appropriate disposition. I do not accept that submission. The seriousness of the offending is such that only imprisonment can be justified.[39]
[39] Sentencing Act 1995, s 6(4).
I must consider the length of the term of imprisonment and whether that term should be suspended. I have outlined all considerations relevant to determining the appropriate sentence when considering ground four.
I have determined that the term of imprisonment must be reduced from 18 months to 14 months' imprisonment. In reducing the term of imprisonment I have given full weight to all factors in mitigation. In this case Mr Tait's youth and excellent antecedents are significant mitigating factors. Mr Tait has expressed remorse and is a person with very sound prospects for rehabilitation. I have taken the factors in mitigation into account after I have reduced the sentence that I would have otherwise imposed, but for the plea of guilty, by 25% pursuant to s 9AA of the Sentencing Act.
I must now consider whether the term of imprisonment should be suspended.
Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including any aggravating and mitigating factors and the vulnerability of any victim of the offence.
Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[40] The sentencing options available to are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.
[40] Cartwright v The State of Western Australia [2010] WASCA 4 [8].
Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.
The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[41] That is, all circumstances must be revisited. I 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.
[41] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].
The question of suspension is finely balanced. After careful reflection, I have determined that the term of imprisonment will be suspended. Therefore, the term of imprisonment of 14 months is suspended for 12 months. I wish to make it clear that in this case there are very strong mitigating factors that support the suspension of the term of imprisonment. Mr Tait committed a serious offence. Ordinarily, offenders committing similar offences should expect an immediate term of imprisonment. Mr Tait is 22 years of age with excellent antecedents, who is remorseful and has expressed victim empathy, has excellent prospects for rehabilitation and pleaded guilty at the first reasonable opportunity.
Conclusion
Therefore, leave is granted on grounds one, two and four and the appeal is allowed. The sentence imposed by the magistrate is set aside and in lieu thereof a term of imprisonment of 14 months is imposed, suspended for 12 months. Given Mr Tait's antecedents, I do not consider that conditions are required to be imposed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH31 JULY 2018
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