White v Toovey - [2020] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WHITE -v- TOOVEY [2020] WASC 208
CORAM:   DERRICK J
HEARD:   5 JUNE 2020
DELIVERED          :   12 JUNE 2020
FILE NO/S:   SJA 1017 of 2020
BETWEEN:   WILLIAM NICOLAS WHITE
Appellant
AND
MATTHEW TOOVEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R JOHNSTON
File Number            :   AL 2755/2019

Catchwords:

Criminal law - Appeal against sentence - Sentence of immediate imprisonment imposed - Whether magistrate made a finding that certain conduct of the appellant aggravated the seriousness of the offence without according procedural fairness to the parties - Whether magistrate treated prior conviction of the appellant as an aggravating factor - Whether length of term of imprisonment imposed was manifestly excessive - Whether wrong type of sentence was imposed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Mr C S Woodhouse
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Robertson Hayles Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Billington v Depetro [2018] WASC 171
Cleminson v The State of Western Australia [2017] WASCA 58
Dillon v The State of Western Australia [2020] WASCA 24
Eldridge v The State of Western Australia [2020] WASCA 66
Forrest v The State of Western Australia [2019] WASCA 172
Hamlett v Whitney [2013] WASC 100
Harper v Page [2004] WASCA 267
HNA v The State of Western Australia [2016] WASCA 165
Hume v Pettyfer [2014] WASC 22
Hutchins v The State of Western Australia [2006] WASCA 258
Kabambi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2020] WASCA 29
Kennedy v The State of Western Australia [2017] WASC 156
Law v The Queen [2019] WASCA 81
Lee Suarez v Cutler [2012] WASC 171
Mason v The State of Western Australia [2018] WASCA 43
Moran v Baker [2019] WASC 251
Musulin v The State of Western Australia [2020] WASCA 18
NTH v The State of Western Australia [2020] WASCA 22
Page v The State of Western Australia [2018] WASCA 76
Powell v The State of Western Australia [2010] WASC 54
Powell v The State of Western Australia [2010] WASC 54 (S)
Quinn v The State of Western Australia [2006] WASCA 99
Rimington v The State of Western Australia [2015] WASCA 102
Roncevic v The State of Western Australia [2012] WASCA 43
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scolaro v Shephard [No 2] [2010] WASC 271
Trajkoski v The State of Western Australia [2018] WASCA 176
Willenberg v Downey [2015] WASC 282
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
WRT v The State of Western Australia [2020] WASCA 68

DERRICK J:

Introduction

On 27 December 2019 the appellant was charged with one offence of assaulting the driver of a taxi contrary to s 318(1)(g)(iii) of the Criminal Code (WA) (Code).
On 30 January 2020 the appellant pleaded guilty to, and was convicted of, the charge.
On 28 February 2020 the appellant was sentenced to 8 months immediate imprisonment for the offence. He was made eligible for parole.
The appellant now applies for leave to appeal against the sentence imposed on four grounds the details of which are set out below.[1]
[1] The application is made under Div 2 of Pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 6 April 2020 the Principal Registrar ordered that the application for leave to appeal be heard together with the appeal.
For the reasons that follow I am of the opinion that the appeal should be dismissed.

Leave to appeal - principles

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[2] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[3] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[4]
[2] CAA, s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] CAA, s 9(3).

The facts of the offence

The facts of the appellant's offence are not in dispute. They are as follows.[5]
[5] ts 2 ‑ 3, 27 February 2020.
At 2.10 pm on 27 December 2019 the 36‑year‑old appellant was at an address in Pinaster Road in Willyung. The appellant or an associate of the appellant arranged for a taxi to attend the address. The 67‑year‑old victim taxi driver attended the address and collected the appellant and his associate. The victim drove the appellant and his associate to an address in Yakamia.
The total fair for the trip was $16.70. The appellant's associate paid the victim $25 for the trip telling the victim to keep the change. The appellant's associate then got out of the taxi. The appellant remained in the taxi. The victim left the taxi meter running to avoid the appellant having to pay a second flag fall charge.
The appellant requested the victim to drive him to Six Degrees on Stirling Terrace in Albany. The victim drove the appellant to this location. He parked the taxi at the southern end of a carpark immediately adjacent to Stirling Terrace.
The victim informed the appellant that the fair for the trip was $9.60. The victim explained to the appellant that the appellant only had to pay the difference between the initial leg of the journey and the second leg of the journey. The victim explained to the appellant why the meter had been left running, namely that it saved the appellant several dollars in flag fall charges.
The appellant immediately became aggressive. He yelled at the victim, verbally abusing the victim and accusing the victim of stealing $10 from him. The appellant threatened the victim that he was going to 'smash him'.
The victim removed $9.60 from the taxi float and gave it to the appellant telling the appellant that he did not want to have an argument. The victim handed the money to the appellant placing it in the appellant's left hand.
The appellant removed a beer bottle from his right hand to his left hand while still holding the change.[6] The appellant leaned forward to the front of the taxi and struck the victim in the left side of his head with his fist while still holding the beer bottle. Several coins that the appellant was holding fell into the front of the taxi. In addition the appellant's beer spilt wetting the victim's leg, shirt and the front seat of the taxi.
[6] The prosecutor used the word 'removed' when stating the facts of the appellant's offence to the magistrate: ts 3, 27 February 2020.
The appellant then leaned around and punched the victim to the right side of his head twice with his right fist. He punched the victim between the headrest and the side of the vehicle.
During the assault the victim was unable to get out of the taxi because he had his seatbelt on.
The appellant got out of the taxi and walked away. He walked in an easterly direction on Stirling Terrace. He stopped briefly outside a massage store and placed the beer bottle on the ground before continuing along Stirling Terrace.
The appellant was apprehended by police a relatively short time later. He was arrested. He was heavily intoxicated by alcohol.
The appellant was unable to be interviewed due to his state of intoxication. He was charged and released on bail.
As a result of the assault the victim suffered two lacerations to his face which left him bleeding.

The sentencing hearings

On 27 February 2020 the appellant appeared before Magistrate Johnston for sentencing. The appellant was represented.
At the hearing the magistrate had before her a pre‑sentence report dated 13 February 2020, a victim mediation report and some other materials provided to her on the appellant's behalf.
After hearing the facts of the offence the magistrate heard the appellant's counsel's plea in mitigation. In his plea in mitigation counsel for the appellant submitted that the appropriate disposition was a fine and/or a conditional suspended imprisonment order.[7] In support of this submission counsel made the following points:
1.The appellant was remorseful as demonstrated by his participation in the victim/offender mediation process, his payment of compensation to the victim for his out of pocket expenses, and his letter of apology;[8]
2.The appellant was a professional jockey. He committed the offence as a result of drinking alcohol to excess following a win earlier in the day in a horse race;[9]
3.The appellant was motivated to deal with his alcohol use problem as demonstrated by his voluntary engagement with Palmerston for alcohol use counselling;[10]
4.The appellant understood that he could not drink alcohol if he wanted to stay out of trouble;[11]
5.The appellant had already suffered humiliation and a degree of extra‑curial punishment in the form of significant media (including social media) reports about his case;[12] and
6.There was a risk that the appellant would, as a result of his conviction, no longer be able to work as a professional jockey.[13]
[7] ts 6 ‑ 7, 27 February 2020.
[8] ts 4, 5, 27 February 2020.
[9] ts 5, 27 February 2020.
[10] ts 5, 27 February 2020.
[11] ts 5, 27 February 2020.
[12] ts 6, 27 February 2020.
[13] ts 6, 27 February 2020.
On behalf of the prosecution it was submitted that although the offence 'certainly could warrant an immediate term of imprisonment … it may well be that a conditional suspended imprisonment order is deemed appropriate …'.[14]
[14] ts 7, 27 February 2020.
After hearing the submissions of the parties the magistrate decided to adjourn the appellant's sentencing to the following day.
At the hearing on 28 February 2020 the magistrate proceeded to sentence the appellant.
In sentencing the appellant the magistrate made express reference to the fact that the maximum summary conviction penalty for the offence was 3 years imprisonment. Her Honour noted that the prosecution had not positively sought the imposition of an immediate term of imprisonment and that this was something for her to take into account, but that she was not bound by the concession.[15]
[15] ts 2, 28 February 2020.
The magistrate 'adopted' into her sentencing remarks the facts of the offence as stated by the prosecutor during the hearing on the previous day.[16]
[16] ts 2, 28 February 2020.
The magistrate noted that the prosecution had not charged the appellant with having caused bodily harm despite the fact that the victim had suffered profuse bleeding as a result of the assault.[17] Her Honour stated that she would sentence the appellant on the basis that there was no bodily harm 'because that's the charge that has been laid'.[18]
[17] ts 2, 28 February 2020.
[18] ts 2, 28 February 2020.
The magistrate accepted that the appellant was very intoxicated at the time that he committed the offence.[19] However, her Honour made the point that given the appellant had chosen to drink he had to accept the consequences of his behaviour and that his state of intoxication was not an excuse.[20]
[19] ts 3, 28 February 2020.
[20] ts 3, 28 February 2020.
The magistrate expressed the view that there was 'very much a need' for specific deterrence in the sentence that she imposed.[21] Her Honour said that there was a need for specific deterrence because the appellant had prior convictions for excessive alcohol consumption related offences, albeit that the convictions had been recorded against him several years ago.[22]
[21] ts 3, 28 February 2020.
[22] ts 3, 28 February 2020.
The magistrate noted that the appellant had a prior conviction for assault occasioning bodily harm.[23] Her Honour stated that although she was not resentencing the appellant for this prior offence, the fact that he had this prior conviction meant that he did not come before the court as a first offender.[24]
[23] ts 3, 28 February 2020.
[24] ts 3, 28 February 2020.
The magistrate stated that there was obviously a requirement for her to impose a sentence that was capable of acting as a general deterrent.[25] In this context her Honour stated that taxi drivers 'should feel entitled to be safe in their taxi … while they go about their employment'.[26]
[25] ts 3, 28 February 2020.
[26] ts 3, 28 February 2020.
The magistrate stated that she needed to consider the seriousness of the offence, that she could only impose a term of imprisonment if imprisonment was the only appropriate disposition, and that if she concluded that a term of imprisonment was the only appropriate disposition she needed to consider whether a term of immediate imprisonment was the only appropriate disposition.[27]
[27] ts 3 ‑ 4, 28 February 2020.
Her Honour expressly identified the following factors as being to the appellant's credit (in other words, as being mitigatory factors):
1.The appellant's early plea of guilty;[28]
2.The appellant had sought to engage in victim/offender mediation;[29]
3.The appellant had accepted the consequences of his behaviour;[30]
4.The appellant had paid $250 to the victim for the loss that he had suffered as a result of not being able to work for a few hours on the night of the offence;[31] and
5.The appellant had attended three counselling sessions with Palmerston (which her Honour found showed that the appellant recognised that he had a problem with alcohol that he needed to deal with).[32]
[28] ts 2, 28 February 2020.
[29] ts 3, 28 February 2020.
[30] ts 3, 28 February 2020.
[31] ts 3, 28 February 2020.
[32] ts 4, 28 February 2020.
The magistrate gave the appellant the full 25% discount for his guilty plea pursuant to s 9AA of the Sentencing Act 1995 (WA).[33]
[33] ts 2, 28 February 2020.
Although the magistrate identified the appellant's attendance at Palmerston as a mitigatory factor, her Honour also noted that according to the pre‑sentence report the appellant had denied that he had a problem with alcohol.[34] Her Honour further noted that in this respect the pre‑sentence report was 'somewhat contradictory' with the report from Palmerston.[35] Her Honour stated that this contradiction went 'back to the issue of specific deterrence'.[36]
[34] ts 4, 28 February 2020.
[35] ts 4, 28 February 2020.
[36] ts 4, 28 February 2020.
The magistrate also noted that the pre‑sentence report indicated that the appellant had very limited victim empathy and that this '[seemed] to be different to the fact' that the appellant had attempted to engage in victim/offender mediation.[37]
[37] ts 4, 28 February 2020.
The magistrate expressly identified as an aggravating factor the age of the victim.[38]
[38] ts 3, 28 February 2020.
The magistrate concluded that a term of imprisonment was the only appropriate disposition for the offence 'given purely the seriousness of the offence and the protection of the community' which her Honour considered to be paramount and significant factors for her consideration.[39] Further, ultimately her Honour concluded that a term of immediate imprisonment was the only appropriate disposition. Her Honour concluded her remarks in the following terms:[40]
It - it does - it is clear that you have treatment needs and - and I need to balance that with the - the other factors that I have referred to such as specific deterrence and general deterrence and the seriousness of the offence and the protection of the community and, as I say, general deterrence is a significant factor. In all of the circumstances, despite the submissions from your counsel and the prosecution, I am of the view that a term of immediate imprisonment is the only appropriate disposition. So I am going to sentence you to an immediate of 8 months [sic] …
[39] ts 3, 28 February 2020.
[40] ts 4 ‑ 5, 28 February 2020.
Her Honour made the appellant eligible for parole.

Ground 1 of the appeal

The first of the appellant's grounds of appeal is expressed in the following terms:
1.The learned magistrate erred in dealing with the issue of whether the Appellant had intentionally transferred the bottle to his left hand with a view to using it to hit the victim as an aggravating factor.
Particulars
1.1The Statement of Material Facts did not allege that the appellant had transferred the bottle to his left hand for the purpose of assaulting the victim with it;
1.2The prosecutor at the sentencing hearing did not rely on the transfer of the bottle as an aggravating factor;
1.3Counsel for the appellant did not deal with the issue as the matter had never been raised between the parties; and
1.4In relying on the transfer of the bottle as an aggravating factor, the learned sentencing magistrate was in error.
The ground therefore alleges, in substance, that the magistrate made an error of law.[41]

The relevant statements of the magistrate

[41] CAA, s 8(1)(a)(i).

The portion of the magistrate's sentencing remarks which form the basis of the ground of appeal were as follows:[42]
I won't go through the facts in detail, they were outlined by the prosecution. I adopt them into my reasons - my decision. I do note, however, that the victim was 67 years of age and it would seem that the victim attended - attempted to calm the situation down. You were being abusive and rather than reacting he did what he could to try and calm the situation by handing you money and you took that money and you nevertheless after that assaulted him. You made a decision to move the bottle that you had in your hand to the other hand and you struck his head with your fists and then did so twice more and he was unable to move or get out of the - the vehicle or get away from your blows because he was obviously wearing a seatbelt at the time. (emphasis added)

The appellant's submissions

[42] ts 2, 28 February 2020.

The appellant submits that the magistrate, by making a finding that he 'made a decision' to move the beer bottle into his left hand also 'implicitly found' that he formed the intention to use the bottle to strike the victim so as to more effectively carry out the assault.[43] The appellant submits that a finding that he formed the intention to use the bottle to strike the victim was a finding that aggravated the seriousness of his conduct in committing the offence. The appellant submits that the facts of the offence as read to the court by the prosecutor did not contain an assertion that his conduct in moving the bottle into his left hand evinced an intention on his part to use the bottle to strike the victim, and that the prosecutor did not contend that this conduct should be viewed as an aggravating factor.[44] The appellant asserts that if the matter had been put in issue at the sentencing hearing his explanation would have been that he had transferred the bottle to his left hand so that he could open the car door with his right hand, and that this explanation had already been provided to the prosecutor in the days before the hearing by his solicitor.[45] The appellant submits that in these circumstances the magistrate was required to make it known to counsel that she was intending to view his conduct comprised of moving the bottle to his left hand as an aggravating factor for the purposes of sentencing.[46] The appellant further submits that the magistrate, by treating his conduct comprised of moving the bottle to his left hand as an aggravating factor without having alerted counsel to her intention to do so, made an error of law.[47]

Applicable legal principles

[43] Appellant's submissions [19].

[44] Appellant's submissions [21].

[45] Appellant's submissions [22].

[46] Appellant's submissions [23] ‑ [25].

[47] Appellant's submissions [23] ‑ [25].

The legal principles applicable to the determination of the ground of appeal are not in dispute. If a court intends to find that a particular fact aggravates the seriousness of an offence in circumstances where the prosecution does not contend that the fact aggravated the seriousness of the offence, the court must ensure procedural fairness by drawing to the attention of the parties its intention to make the finding in question and by giving to the parties the opportunity to respond.[48]

Analysis and decision

[48] Hutchins v The State of Western Australia [2006] WASCA 258 [25]; Rimington v The State of Western Australia [2015] WASCA 102 [53] ‑ [54].

The facts of the offence as read to the court did not contain an assertion that the appellant moved the bottle from his right hand to his left hand with the intention of using the bottle to strike the victim. The prosecution did not contend that the magistrate should make a finding to this effect. Accordingly, if the magistrate did in fact find that the appellant had moved the bottle from his right hand to his left hand with the intention of using the bottle to strike the victim and that this was an aggravating factor, her Honour, in light of the fact that she did not notify the parties of her intention to make such a finding, failed to comply with the requirements of procedural fairness and therefore erred.
In my opinion, reading the magistrate's sentencing remarks as a whole and in context,[49] there is no basis for concluding that her Honour did, expressly or implicitly, make a finding that the appellant's transfer of the bottle to his left hand indicated that he had formed an intention to use the bottle to strike the victim.
[49] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].
Immediately before commencing to state the facts of the offence the magistrate said that she 'would not go through the facts in detail', that the facts had been 'outlined by the prosecution' and that she 'adopted' the facts as outlined by the prosecution into her decision. Further, the magistrate did not state that the appellant made the decision to move the bottle to his left hand with the intention of using the bottle to strike the victim, something that it is reasonable to expect that her Honour would have said if she was making such a finding. To the contrary, the magistrate made a point of stating that the appellant had struck the victim's head with his 'fists' without making any reference to any intention on the part of the appellant, at the time of striking the first blow, to strike the victim with the bottle. Viewed in this context it cannot, in my view, be reasonably contended that her Honour's use of the words 'made a decision to move the bottle that you had in your hand to the other hand' convey, or were intended to convey, a different meaning to the words used by the prosecutor in stating the facts of the offence, specifically that the appellant 'removed a … bottle from his right hand to his left hand'.[50] Rather, in my opinion the focussed upon statement of the magistrate, when read in context, amounts to nothing more than a recitation of the facts of the offence as read to her by the prosecutor, albeit a recitation that involved the use of slightly different words.
[50] ts 3, 27 February 2020.
In any event, even if contrary to my expressed view the magistrate did find that the appellant moved the bottle to his left hand with the intention of hitting the victim with the bottle, there is no basis for finding that her Honour treated the existence of this intention as an aggravating factor. The magistrate did not make any statement to indicate that she found the existence of such an intention to aggravate the seriousness of the appellant's conduct in committing the offence. This is despite the fact that her Honour expressly identified as an aggravating factor the victim's age.
It is also worth noting in this context that if the appellant did, as he asserts, move the bottle from his right hand to his left hand to enable him to open the car door with his right hand, he did, as the magistrate found, make 'a decision' to move the bottle into his left hand.
The ground of appeal is without merit. I refuse leave to appeal on the ground.

Ground 2

The second of the appellant's grounds of appeal is pleaded as follows:
2.The learned magistrate erred by relying on the appellant's previous conviction for assault occasioning bodily harm as an aggravating factor.
Particulars
2.1The learned sentencing magistrate observed (at ts 28 Feb ‑ page 3) that;
That penalty served some sort of deterrence to you but ultimately not in a long‑term sense.
2.2The fact that a previous sentence has not achieved the desired purpose is not a matter which can aggravate an offence, pursuant to s 7(2)(c) of the Sentencing Act 1995 (WA); and
2.3To the extent that this issue was seen as an aggravating factor, the learned sentencing magistrate was in error.

The appellant's submission

Although the ground as pleaded asserts that the magistrate made an error by relying on the appellant's previous conviction for an offence of assault occasioning bodily harm as an aggravating factor, which of course the magistrate was prohibited from doing by s 7(2)(b) of the Sentencing Act, the argument actually advanced by the appellant on the appeal, consistently with the pleaded particulars of the ground, was that the magistrate erred by contravening s 7(2)(c) of the Sentencing Act. More specifically, the appellant submits that 'to the extent' that the magistrate considered that his commission of the present offence demonstrated that the sentence imposed on him for his prior offence did not sufficiently deter him from further offending, the magistrate was in breach of s 7(2)(c).[51]

The magistrate's statements

[51] Appellant's submissions [27].

The statements made by the magistrate which form the basis of this ground of appeal were as follows:[52]
… there is very much a need for specific deterrence in the sentence that I impose and that means I need to send a message to you that the Court will deal appropriately with these sorts of matter [sic] and the message to you that you cannot commit these sorts of offences and I say that that's necessary because you do have prior convictions that are related to alcohol - excess alcohol consumption albeit that they are several years ago.
But you do have a previous conviction for an assault occasioning bodily harm and I note that you don't have any criminal convictions since then. So it would seem that that penalty served some sort of deterrence to you but ultimately not in a long‑term sense. And I'm not resentencing you for that but it means that I - you don't come before the court as a first time offender. (emphasis added)

Analysis and decision

[52] ts 3, 28 February 2020.

An aggravating factor is a factor which, in the court's opinion, increases the culpability, that is, the moral blameworthiness of, an offender.[53]
[53] Sentencing Act, s 7(1).
It is, of course, the position that by reason of s 7(2)(c) of the Sentencing Act an offence is not aggravated by the fact that a previous sentence has not achieved the purpose for which it was imposed. However, there is nothing in the magistrate's above cited statement the subject of the appellant's complaint, when read in context, that is capable of being construed as a statement by her Honour that she was treating the fact that the previous sentence had not achieved the purpose for which it was imposed as aggravating the seriousness of the offence for which she was dealing with him; that is, as increasing his culpability for committing the offence. Rather, it is readily apparent that all that the magistrate was doing was making the perfectly valid point that the penalty imposed on the appellant for the prior assault occasioning bodily harm offence had not deterred him on a long‑term basis from committing a further offence of a similar type with the consequence that specific deterrence remained relevant.[54]
[54] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].
The appellant seeks to draw support for his argument from the following statement made by Hall J in Hamlett v Whitney:[55]
The appellant also had a very significant criminal record. The offences for which he was sentenced were not aggravated by the fact that a previous sentence had not achieved its purpose: s 7(2)(c) Sentencing Act.
[55] Hamlett v Whitney [2013] WASC 100 [27].
However, when regard is had to what Hall J went on to say immediately after making the above quoted statement the fact that the appellant's reliance on his Honour's statement is misconceived becomes readily apparent. Specifically, his Honour went on to say the following:[56]
However, it could not be said that the appellant came before the court as a man of good character. The fact that previous sentencing dispositions had not been effective in deterring the appellant was a relevant consideration ... (emphasis added)
[56] Hamlett v Whitney [27].
Accordingly, Hall J was clearly not suggesting that s 7(2)(c) renders it impermissible for a sentencing judge or magistrate, in determining what if any weight to give to the sentencing consideration of personal deterrence, to take into account that a previous sentence had not achieved the purpose for which it was imposed.
Finally, and for the sake of completeness, I note that there is no basis for any suggestion that the magistrate erred by treating the appellant's prior conviction for the assault occasioning bodily harm offence as an aggravating factor contrary to s 7(2)(b) of the Sentencing Act.There is nothing in the magistrate's above cited statements, when read in context, that is capable of being construed as a statement by her Honour that she was treating the appellant's prior conviction as aggravating the seriousness of the offence for which she was dealing with him; that is, as increasing his culpability for committing the offence. The fact that her Honour was not treating the prior conviction as an aggravating factor was made even clearer by her Honour's statement that she was not resentencing the appellant for that prior offence.
The ground of appeal is without merit. Leave to appeal on the ground is refused.

Ground 4

It is convenient to deal with the appellant's fourth ground of appeal at this point. By this ground the appellant alleges an implied error, specifically that the 8 month term of imprisonment imposed by the magistrate was manifestly excessive having regard to a number of factors.[57] The identified factors are as follows:[58]
1.The circumstances of the case;
2.The appellant's early guilty plea and genuine expression of remorse;
3.The appellant's insight into his issues with alcohol consumption and his proactivity in attending counselling in an attempt to rehabilitate himself;
4.The appellant's attempts to proactively enter into victim/offender mediation with the victim and his subsequent payment of compensation to the victim;
5.The fact that no bodily harm was suffered by the victim; and
6.The appellant's lack of any recent, significant criminal record.

Manifest excess - general principles

[57] An appeal may be made on this ground pursuant to s 8(1)(a)(iii) of the CAA.

[58] Ground 3; Appellant's submissions [32].

The general principles governing the determination of appeals in which it is contended that an individual sentence is manifestly excessive are well‑established and are as follows:[59]
[59] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Trajkoski v The State of Western Australia [2018] WASCA 176 [30]; Kabambi v The State of Western Australia [2019] WASCA 44 [21]; Musulin v The State of Western Australia [2020] WASCA 18 [33]; Dillon v The State of Western Australia [2020] WASCA 24 [41]; Eldridge v The State of Western Australia [2020] WASCA 66 [22]; WRT v The State of Western Australia [2020] WASCA 68 [40].
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error;
2.In order to determine whether a sentence for an individual offence is manifestly excessive the offence must be examined from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender;
3.The discretion conferred on a sentencing court is of fundamental importance and an appellate court may not substitute its own opinion for that of the sentencing court merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust;
4.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 a particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried; and
5.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. 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. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

Analysis and decision

Maximum penalty

The maximum sentence that could be imposed by the magistrate for the offence, being the maximum summary conviction penalty, was 3 years imprisonment. However, the maximum summary conviction penalty was only a jurisdictional limit. It was not the statutory maximum penalty. The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of dealing with this ground of appeal, is 7 years imprisonment.[60]
[60] s 318(1)(m); Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [24] ‑ [33].
The maximum penalties for assaults under s 318(1) can be contrasted with those for the offence of unlawful assault under s 313 of the Code. The maximum penalty for the offence of unlawful assault, which is a simple offence, is 3 years imprisonment and a fine of $36,000 where there are circumstances of aggravation, and 18 months imprisonment and a fine of $18,000 in any other case. The higher maximum penalties for offences against s 318(1) reflect the greater seriousness with which assaults committed against the categories of persons specified in the section, specifically persons performing a public function or a function which serves the public, are to be viewed.[61]

The seriousness of the appellant's conduct

[61] Hume v Pettyfer [2014] WASC 22 [20] ‑ [21].

The offence was serious. The victim was a taxi driver performing a service to the public. The offence was completely unprovoked. The victim, once the appellant became aggressive, did his best to calm and placate the appellant going so far as to give him money. Nonetheless, despite the victim's efforts the appellant proceeded to attack the victim by hitting the victim three times with force with his fists to the head. The blows caused the victim to suffer two lacerations which bled profusely. The victim was, at the time, in a vulnerable position being unable to get out of the seat of his taxi. The seriousness of the offence was further aggravated by the age of the victim.
It is, of course, the case that the appellant was intoxicated at the time that he committed the offence. It can be accepted that if the appellant was not intoxicated he would not have behaved in the violent way that he did. However, given that the appellant had voluntarily consumed alcohol to the point of intoxication, the fact of his intoxication, while explaining his conduct, did not in any way reduce the seriousness of his conduct.
In all the circumstances to which I have referred, and notwithstanding that the victim did not suffer any lasting injuries, the offence was, in my opinion, a moderately serious example of its type.
It is apparent from what I have said that in my view the fact that the appellant caused the victim to suffer laceration type injuries is relevant to the assessment of the seriousness of the appellant's conduct in committing the offence. This being the case it is necessary for me, before leaving the issue of the seriousness of the appellant's conduct, to say something about the appellant's above referred to contention that one of the factors that points to the sentence imposed by the magistrate being manifestly excessive is that no bodily harm was suffered by the victim.
The assertion that the victim did not suffer bodily harm (which senior counsel for the appellant understandably did not attempt to maintain during the hearing of the appeal) is simply incorrect. Clearly, the lacerations suffered by the victim which bled profusely were injuries that interfered with the health or comfort of the victim and therefore constituted 'bodily harm' within the meaning of the Code.[62] The real contention advanced by the appellant, as I understand it, is that because he was not convicted of an offence which contained as an element or as a statutorily provided for aggravating circumstance the causing of bodily harm, the fact that his assault caused the victim injury is not something that can be taken into account in assessing the seriousness of his offence. It would appear from the statement made by the magistrate in sentencing the appellant that she was sentencing him on the basis that bodily harm was not caused to the victim, that her Honour accepted this contention as correct.
[62] Code, s 1, definition of 'bodily harm'.
The appellant's contention is not correct. It is the position that s 318 does not provide that in the case of any of the offences created by s 318(1) the doing of bodily harm operates as a circumstance of aggravation, that is, as a circumstance that increases the maximum penalty that can be imposed for the offence.[63] The circumstances of aggravation for the purposes of the offences created by s 318(1) are limited to those specified in s 318(1)(l). It is also the position that in the case of an offence committed against a taxi driver in contravention of s 318(1)(g)(iii), the doing of bodily harm is not a 'prescribed circumstance' as defined by s 318(5)(b) and consequently does not render the offender liable to the imposition of the mandatory minimum penalty specified in s 318(4) that is potentially applicable to those offenders who assault and do bodily harm to other classes of worker in contravention of s 318(1)(h)(i), s 318(1)(j) or s 318(1)(k). However, the fact that the appellant's causing of bodily harm to the victim is not a circumstance of aggravation specified in s 318(1)(l) and is not a 'prescribed circumstance' within the meaning of s 318(5)(b), does not mean that the fact of the causing of the bodily harm (the laceration injuries) is irrelevant to the determination of the seriousness of the appellant's offence. It simply means that the appellant's doing of the bodily harm does not expose him to the imposition of the increased maximum penalty under s 318(1)(l) or the mandatory minimum penalty under s 318(4). The nature and extent of the injuries caused by the appellant to the victim during the assault remain relevant to the determination of where the appellant's offence falls within the scale of seriousness of offences of its type. The causing of the injuries did, albeit only to a limited extent, aggravate or increase the seriousness of the appellant's offence.

General deterrence

[63] The circumstances of aggravation specified in s 318(1)(l) do not include the doing of bodily harm.

General deterrence was a significant sentencing consideration. Taxi drivers provide an important public service. The magistrate was therefore required, in determining the length of the sentence to be imposed, to take account of the need to impose a sentence that was capable of deterring others who might be tempted to engage in violent behaviour towards taxi drivers from doing so.

Criminal record

The appellant did have a criminal record. In August 2005 the appellant was convicted of careless driving. In October 2009 he was convicted of one offence of refusing to leave a licensed premises and one offence of obstructing a public officer. In April 2011 he was convicted of one offence of assault occasioning bodily harm for which he was fined $2,500. In June 2017 he was convicted of an offence of driving without authority. The appellant had never been sentenced to a term of imprisonment.
It must be accepted that the appellant's criminal record was not particularly extensive or recent. Clearly, his record did not increase the seriousness of the offence for which he was to be dealt with. Nonetheless, the nature and extent of the appellant's record, particularly given that it included a prior offence of violence, was such as to prevent the appellant from being afforded any leniency for prior good character.[64] It is also the position that the appellant's record did reveal that the imposition on him of a significant financial penalty for his prior offence of violence had not deterred him, at least in the longer term, from drinking to excess and consequently engaging in further violent conduct.

Mitigatory factors

[64] Law v The Queen [111]; Forrest v The State of Western Australia [50].

There were a number of significant mitigatory factors in the appellant's case. The mitigatory factors were as follows:
1.The appellant's early plea of guilty;
2.The appellant's remorse and acceptance of responsibility as demonstrated by his participation in victim/offender mediation, his payment of compensation to the victim and his letter of apology;
3.The fact that the appellant had taken steps to deal with his problematic alcohol use (even if, as was stated in the pre-sentence report, he was not convinced that he had a problem with alcohol);
4.The appellant's good employment history; and
5.The possibility, if not likelihood, that the appellant's ability to work as a professional jockey would be adversely impacted upon as a result of him being convicted of the offence.
During the hearing of the appeal senior counsel for the appellant informed me from the bar table, without objection by counsel for the respondent, that the appellant has, as a result of his conviction, been suspended by the relevant professional body from working as a jockey for a period of eight months. This is something that I am, in determining if the sentence imposed by the magistrate was manifestly excessive, permitted to take into account as a mitigatory factor.[65] I will do so.
[65] CAA, s 14(5).
The appellant submitted on the appeal that the fact that he was made the subject of significant negative media attention after he was charged also operated as a mitigatory factor. I do not accept this submission. In my opinion the media attention that the appellant was subjected to, which I accept on the basis of his counsel's statements from the bar table was substantial and adverse to him, was not a factor that carried with it any significant mitigatory value.[66] I note in this context that it was not suggested to the magistrate on the appellant's behalf (or to me during the hearing of the appeal) that the media attention that the appellant had received had caused him to suffer some substantial physical or psychological injury that was over and above ordinary feelings of humiliation.

Standards of sentencing customarily observed - comparable cases

[66] Scolaro v Shephard [No 2] [2010] WASC 271; Billington v Depetro [2018] WASC 171 [111] ‑ [112].

As to the standards of sentencing customarily observed in cases involving offences of the type committed by the appellant, the parties have not referred me to any appellate decision dealing with sentences imposed for assaults upon taxi drivers contrary to s 318(1)(g)(iii). I have not uncovered any such decision through my own research.[67]
[67] In Lee Suarez v Cutler [2012] WASC 171, which was not referred to by the parties, the offender was convicted of assaulting a taxi driver contrary to s 318(1)(g)(iii). The sentencing magistrate fined the offender $750 for the offence and refused to make a spent conviction order. The offender appealed against the magistrate's decision refusing to make a spent conviction order. Accordingly, the appeal was concerned solely with this aspect of the magistrate's decision and did not address the adequacy or otherwise of the sentence imposed by the magistrate. The decision is therefore not one to which reference can usefully be made in addressing the issue of the standards of sentencing customarily observed in cases involving offences of the type committed by the appellant.
There are a number of reported cases dealing with assaults against police officers contrary to s 318(1) of the Code. These cases reveal that sentences of imprisonment greater than the sentence imposed on the appellant are commonly imposed for offences of assaulting police officers.[68] However, given that the public function performed by police officers (the enforcement of the law and the protection of the public) is significantly different in character to the public function performed by a taxi driver (providing a service to the community), and given that the circumstances in which police officers are assaulted will generally be markedly different to those in which a taxi driver is assaulted, it is, I think, difficult to view cases involving assaults on police officers as being usefully comparable to the present case or as revealing the standards of sentencing customarily observed in cases like the present case. I say this fully cognisant of the fact that the maximum penalty for an offence of assaulting a public officer under s 318(1)(d) is the same as the maximum penalty for the offence of assaulting a taxi driver under s 318(1)(g)(iii).
[68] See for example Quinn v The State of Western Australia [2006] WASCA 99; Roncevic v The State of Western Australia [2012] WASCA 43; Cleminson v The State of Western Australia [2017] WASCA 58; Moran v Baker [2019] WASC 251[53] ‑ [64]. In citing these cases I have not overlooked that for the period between 20 January 1995 and 27 April 2008 the maximum penalty for the offence of assaulting a public officer under s 318(1) was 10 years imprisonment.
One case to which reference can, I think, be usefully made is Powell v The State of Western Australia.[69]
[69] Powell v The State of Western Australia [2010] WASC 54; Powell v The State of Western Australia [2010] WASC 54 (S).
In Powell the offender was convicted on his fast track plea of guilty of an offence of assaulting a public officer contrary to s 318(1)(d). The victim was a female bus driver.[70] The offender fell asleep on the bus. The driver woke the offender up. The driver told the offender that he needed to get off the bus at the next stop. The offender refused to get off the bus and became verbally abusive towards the driver. The driver told the offender that she was calling security. The offender then grabbed the driver's arm and punched her with a clenched fist two or three times to the left side of her face. The driver received bruising to the left side of her face, bruising to her arm and a laceration to her left eyebrow which required five sutures.
[70] It is not clear from the decision why the offender was not charged under s 318(1)(g)(iii).
The offender had a criminal record including convictions for assault. He was remorseful. He had made an offer to pay compensation.
The offender was sentenced in the Magistrates Court to 12 months immediate imprisonment. On appeal Simmons J held that on the matters that were before the magistrate at the time of sentencing, the sentence was not manifestly excessive. However, his Honour upheld the appeal on other grounds and resentenced the appellant to 7 months imprisonment. In doing so his Honour took into account material that was not before the magistrate, specifically material revealing that the appellant was at the time of committing the offence suffering from a severe psychiatric illness which his Honour found contributed to the offender committing the offence and diminished the weight to be placed on general deterrence.
Clearly, one decision does not establish a range of sentences customarily imposed with respect to offences of violence against persons falling within s 318(1)(g)(iii) (the victim in Powell being such a person). Nonetheless, and making full allowance for the differences between the facts and circumstances in Powell and the facts and circumstances in the appellant's case, the decision in Powell does provide some very limited support for the proposition that the term of imprisonment imposed by the magistrate on the appellant was within the range of a sound exercise of the sentencing discretion.

Decision

The appellant committed a serious and completely unprovoked assault against a vulnerable 67‑year‑old taxi driver who was providing a service to the appellant and the public generally, and who at all times did his best to placate the appellant as he became increasingly aggressive. The offence was, as I have stated, a moderately serious example of its type. There was a need to impose a sentence that was capable of acting as a general deterrent. The sentence of 8 months imprisonment imposed by the magistrate was quite obviously well below the maximum penalty for the offence. In these circumstances I am far from persuaded that the term of imprisonment imposed by the magistrate, even allowing for all of the mitigatory factors that were present in the appellant's case and the 25% reduction for his early guilty plea, was unreasonable or plainly unjust. The imposition of a term of imprisonment of 8 months was, in my opinion, properly open to the magistrate in the exercise of her sentencing discretion.
I refuse leave to appeal on this ground.

Ground 3

By this ground of appeal the appellant alleges an implied error, specifically that the magistrate erred by failing to suspend the term of 8 months imprisonment having regard to the factors to which I have already referred in dealing with ground 4. Thus, by this ground of appeal the appellant contends that the wrong type of sentence was imposed.[71]

Legal principles

[71] An appeal may be made on this ground pursuant to s 8(1)(a)(iii) of the CAA.

The principles to be applied by an appellate court in a case where the allegation is, as in this ground, that the wrong type of sentence was imposed are well‑established. Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[72] To put the matter another way, the question for the appellate court is whether it was open for the magistrate to find that the less serious sentencing option was not appropriate.[73]
[72] Salkilld v The State of Western Australia [48]; Page v The State of Western Australia [2018] WASCA 76 [36].
[73] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; Dillon v The State of Western Australia [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Sentencing Act, s 39(3).
In order to determine whether it was not reasonably open to the magistrate to find that the less serious sentencing option was not an appropriate disposition for the offence, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.[74]

Analysis and decision

[74] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] ‑ [70]; Page v The State of Western Australia [36].

In support of his contention that it was not open to the magistrate to find that the less serious sentencing option was not appropriate, the appellant places some limited reliance on the decision in Kennedy v The State of Western Australia.[75]
[75] Kennedy v The State of Western Australia [2017] WASC 156.
In Kennedy the offender was convicted of two offences of unlawfully doing an act as a result of which the life, health or safety of another person was, or was likely, to be endangered contrary to s 304(1)(b) of the Code. He was sentenced at first instance to 6 months immediate imprisonment for each offence to be served cumulatively giving a total effective term of 12 months immediate imprisonment. He appealed against the sentence. His appeal was allowed and he was resentenced to 6 months imprisonment for each offence suspended for 12 months. In allowing the appeal Hall J took into account that the appellant had served 3 months of the term of immediate imprisonment that had been imposed upon him.
As is apparent from what I have already said, the offender in Kennedy was not convicted of an offence against s 318(1). Further, the facts and circumstances of the offences in Kennedy, which I do not need to set out, were starkly different to the facts and circumstances of the appellant's offence. For one thing, they did not involve an assault on a person providing a service to the public. In addition, the personal circumstances of the offender in Kennedy were not closely comparable with the personal circumstances of the appellant. The offender in Kennedy was relatively young and had no criminal record. In all these circumstances I do not consider that the decision in Kennedy provides any support to the appellant's contention. It is not a case that can be usefully compared to the appellant's case.
As I have already pointed out, there were a number of significant mitigatory factors present in the appellant's case. However, when I take into account all of the matters to which I have referred in dealing with ground 4, most particularly the seriousness of the appellant's offence as I have assessed it and the need for general deterrence, it is my opinion that it was open to the magistrate in the proper exercise of her discretion to find that the less serious sentencing option of suspended imprisonment (conditional or otherwise) was not appropriate.
I refuse leave to appeal on this ground.

Exercise of sentencing discretion afresh

I note for the sake of completeness, that if contrary to my above expressed conclusions the magistrate did err as alleged in ground 1 or ground 2 with the consequence that the sentencing discretion falls to be exercised afresh,[76] I would still dismiss the appeal on the basis that no substantial miscarriage of justice occurred because, applying the principles embodied in the Sentencing Act,[77] no different sentence should be imposed.[78]
[76] NTH v The State of Western Australia [2020] WASCA 22 [163] ‑ [164].
[77] See generally HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [32].
[78] CAA, s 14(2).

Conclusion

For the reasons that I have given I would refuse leave to appeal on each ground of appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
10 JUNE 2020