Wungundin v Barndon
[2013] WASC 28
WUNGUNDIN -v- BARNDON [2013] WASC 28
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 28 | |
| Case No: | SJA:1146/2012 | 25 JANUARY 2013 | |
| Coram: | McKECHNIE J | 25/01/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of imprisonment quashed Fine imposed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN WUNGUNDIN WADE TREVOR BARNDON |
Catchwords: | Criminal law Sentencing Assault in domestic relationship Prior offences No real injury Drunkenness made manifest Imprisonment last resort No new principles |
Legislation: | Nil |
Case References: | Harrison v Hunter [2012] WASCA 166 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
WADE TREVOR BARNDON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : DY 613 of 2012
Catchwords:
Criminal law - Sentencing - Assault in domestic relationship - Prior offences - No real injury - Drunkenness made manifest - Imprisonment last resort - No new principles
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Sentence of imprisonment quashed
Fine imposed
Category: B
Representation:
Counsel:
Applicant : Ms N R Sinton
Respondent : Ms J N Harman
Solicitors:
Applicant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Harrison v Hunter [2012] WASCA 166
(Page 3)
1 McKECHNIE J: In the early hours of 30 March 2012 the appellant, then aged 38, and his wife of many years were staying in Derby. They were lying together on a rug when, after an argument, the appellant hit his wife with a closed fist in the ribs from the rear. The says this was because: 'She was jealousing me and I don't like it'.
2 He had done this sort of thing before, having been convicted three times of assaulting his wife. An ambulance was called because the victim felt strong pain and shortness of breath, but she was cleared of injury at the hospital.
3 He did not appear in court until 7 November 2012. He pleaded guilty to unlawful assault in circumstances of aggravation, namely the accused and the victim are in a domestic relationship.
4 The magistrate sentenced him to 8 months' imprisonment, reducing the sentence from 12 months, presumably for the plea of guilty. He said:
Mr Wungundin, for those who behave like this and persistently behave like this, I have to send a very strong message to the community that they will not be tolerated and simply repeat offenders who continue to assault their partners, as I say, once is unforgivable but more than one requires, in my view, the strongest form of deterrent whether it be - you say, 'Well, it's at the lower end of the scale'. Well, it's the lower end of the scale depending on whether you're the giver or the receiver. If you're the receiver I suspect you're not saying, you know, you have to go to the hospital it's that painful.
It may well be that your partner has forgiven you for all sorts of reasons, Mr Wungundin, but the community, in my view, doesn't have that degree of tolerance. In my view, I'm not going to call for a pre-sentence report because, in my view, an immediate term of imprisonment for, as I say, repeat offences. Assault on a woman, which is a very serious offence, in my view, requires an immediate term of imprisonment. I would have otherwise imposed 12 months. There is eight months' imprisonment, Mr Wungundin.
5 Clearly, the magistrate took into account the questions of general and specific deterrence in imposing a sentence of immediate imprisonment. The matters outlined by the magistrate are relevant and are entitled to weight. The appellant has shown continuous violence to his de facto partner by convictions in the last 2½ years. He is 38.
6 It is difficult to reconcile the facts of the many authorities to which counsel for the appellant and respondent have referred. This is no doubt why there is no established range or tariff for the offence of assault: See Harrison v Hunter [2012] WASCA 166.
(Page 4)
7 In setting a sentence, matters such as punishment, deterrence, general and personal, are some of the factors that go into the mix to arrive at the appropriate result. In doing so the sentencer should not overlook the facts and circumstances and unwittingly impose a sentence which is excessive for the criminality disclosed.
8 Here the criminality was, as Burt CJ used to describe, drunkenness made manifest. It was a single punch that caused some pain, but no lasting ill-effect, within a relationship characterised by sporadic violence and reconciliation.
9 A sentence of imprisonment is a sentence of last resort: Sentencing Act 1995 (WA) s 6(4). This principle should not be diminished. Seen in this light, whatever the weight of general and specific deterrence, the sentence was manifestly excessive and the crime did not warrant a sentence of imprisonment.
10 The appropriate disposition would have been an intensive supervision order if a pre-sentence report had been obtained recommending it. This would allow the appellant to address his longstanding alcohol addiction. However, as the appellant has now served nearly 2 months in prison, there is little point. He has received sufficient punishment for the offence.
11 I will allow the appeal. I set aside the term of imprisonment and, simply because the appellant has served a significant time in custody, impose a nominal fine of $50.
6