[2012] WASC 145
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : CLOSTER -v- HUMPHREYS [2012] WASC 145
CORAM : HALL J
HEARD : 27 MARCH 2012
DELIVERED : 27 APRIL 2012
FILE NO/S : SJA 1007 of 2012
BETWEEN : JAYCINTA KATE CLOSTER
Appellant
AND
SARAH EMMA HUMPHREYS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN
AUSTRALIA
Coram : MAGISTRATE G A BENN
File No : KA 3812 of 2011
Catchwords:
Criminal law - Sentence - Assault occasioning bodily harm - Appeal from
Magistrates Court - Whether 10 months' imprisonment manifestly excessive -
turns on own facts [2012] WASC 145
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Legislation:
Criminal Code s 317
Liquor Control Act 1998 (WA)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Ms C A McKenzie
Respondent : Ms G M Cleary
Solicitors:
Appellant : McKenzie & McKenzie
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duggan v Coelho [2009] WASC 372
Holden v The State of Western Australia [2009] WASCA 50
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McDougall v The State of Western Australia [2009] WASCA 232
Plant v Harrington [2010] WASC 364
Powell v Tickner [2010] WASCA 224
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197
A Crim R 319
Scolaro v Shephard (No 2) [2010] WASC 271
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111 [2012] WASC 145
HALL J
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1 HALL J: This is an appeal against sentence. On 22 December 2011 the
appellant was sentenced to 10 months' imprisonment following her plea of
guilty to one charge of assault occasioning bodily harm contrary to s 317
of the Criminal Code (WA). She now seeks leave to appeal that sentence
on a number of grounds. Those grounds relate to a single issue, that is
whether the sentence imposed by the magistrate was manifestly excessive.
The facts
2 The admitted facts were that on or about 12.25 am on 7 October
2011 the appellant was at a licensed premises in Kalgoorlie. She was
heavily intoxicated. The complainant was a female crowd controller on
duty at the premises.
3 As a result of the appellant's intoxicated state she was asked to leave
the premises by the complainant. As the appellant was being escorted to
the door she broke away and made off in the direction of the toilets. The
complainant followed the appellant and 'engaged physically' with her with
a view to removing her forcibly from the premises. The appellant was
holding a glass stubbie bottle, from which she had previously been
drinking.
4 The appellant resisted the complainant's attempt to seize her, and
there was a brief struggle. Security camera footage of the incident
indicates that it lasted approximately eight seconds. During this time the
appellant threw up her arms and this resulted in the bottle that she was
holding in one hand coming into contact with the forehead of the
complainant. The glass bottle broke. It was accepted that the blow with
the bottle was not deliberate, rather the so called 'glassing' was said to
have occurred in the context of the struggle that I have described. The
implication was that whilst the appellant's actions in resisting the
complainant were willed acts, she did not intentionally strike the
complainant with the bottle.
5 The complainant suffered a 1.5 cm laceration to her forehead, some
bruising and superficial cuts to her face. There was no medical report as
to the extent of the injury. However, the magistrate noted in sentencing
that the laceration caused by the broken glass did not penetrate with
sufficient depth as to amount to a wounding at law. A victim impact
statement was submitted to the court in which the complainant referred to
some scarring and psychological consequences.
6 A pre-sentence report was obtained. That report records the
appellant's account of the circumstances in which the offence occurred. [2012] WASC 145
HALL J
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She said that she was at the bar with her sister and friends celebrating her
sister's birthday. Late in the evening she recalled having a verbal
argument with a girlfriend in the toilet. A security guard came in and
asked if everything was all right. The appellant said that she answered the
guard but then continued to discuss with her girlfriend why the latter was
upset with her. At this point the security guard stepped in and
commenced to walk her off the premises.
7 The appellant said that she had a limited recall of the events due to
her level of intoxication. However, she said that she could recall that
someone pulled her by the hair and arm and that she then hit that person
with her free arm. The appellant said that it was only after she heard the
sound of the glass breaking that she realised that she had a stubbie in her
hand. She maintained that at no time did she plan to hurt anyone.
Personal circumstances
8 As a consequence of the offence the appellant lost her full-time
employment. She was also made the subject of a 12 month prohibition
order prohibiting her from attending licensed premises pursuant to the
Liquor Control Act 1988 (WA).
9 The pre-sentence report states that the appellant expressed remorse
and has not attempted to minimise or excuse her conduct. She had written
letters of apology to both the complainant and the owners of the licensed
premises.
10 The appellant accepts that she had issues in regard to excessive
alcohol use and anger management. Her solicitor told the magistrate that
she was seeking to address these issues by attending counselling. There
was evidence before the magistrate that she had attended a number of
counselling sessions prior to appearing for sentence on 22 December
2011.
11 At the time of sentencing the appellant was 25 years old. She was in
a stable and supportive relationship. Following the offence she stopped
drinking alcohol and had the support of her partner and friends in this
regard.
12 The appellant is the second oldest of five siblings. Her parents
separated when she was 8 years old while the family was living in
Victoria. She moved to Western Australia with her mother and her
mother formed a new relationship in Kalgoorlie which produced her two
younger siblings. The pre-sentence report indicated that she had a good [2012] WASC 145
HALL J
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relationship with all of her siblings and a close relationship with her
mother.
13 The appellant's mother had been diagnosed with a brain tumour prior
to the offence and was undergoing treatment. The treatment required the
appellant's mother to attend medical appointments in Perth. On these
occasions the appellant provided daily care for her two youngest siblings.
She also cared for her mother during periods when her mother was
bedridden.
14 The appellant has a limited prior record. However, it did include a
previous conviction for aggravated common assault in 2005. That offence
had occurred in the context of a confrontation with a former partner after
being advised of his infidelity. She had been sentenced to an intensive
supervision order in respect of that earlier offence, and had successfully
completed it.
Magistrate's sentencing remarks
15 The magistrate recounted the facts, particularly noting that the hitting
with the bottle could not be 'described as a deliberate blow but it was a
blow that occurred in the context of a particularly violent struggle by [the
appellant] that wasn't simply instantaneous, although relatively brief'.
His Honour stated that whilst the offence was serious, it was not as
serious as it would have been had the appellant struck a deliberate blow
with the bottle. Nonetheless, his Honour considered that there was a
degree of recklessness in the appellant's behaviour. He said in that regard
that:
The recklessness with which you behaved while struggling with a bottle in
your hand does fall towards the upper end of such recklessness, albeit
significantly short of a deliberate blow, as I have already acknowledged
and noted.
16 The magistrate noted the matters favourable to the appellant,
including her early plea of guilty, her expressions of remorse and her
personal circumstances. His Honour accepted that the appellant was 'very
contrite' and that she had made commitments to bring about changes in
her lifestyle in an endeavour to ensure that such an event would not
happen again.
17 The magistrate noted a number of favourable character references.
He also noted the prior conviction, which whilst not being an aggravating
factor, he said, did indicate a history of violence. [2012] WASC 145
HALL J
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18 The magistrate stated that the present offence was serious because it
involved the use of a bottle in circumstances which included the
complainant being struck to the forehead. He considered that it was also
relevant that the complainant at the time was attempting to carry out her
duty as a crowd controller by ejecting the appellant from the premises.
19 The magistrate then turned to the question of general deterrence and
said:
Also of relevance in respect to determining sentence is the issue of general
deterrence and in that respect I note that within this community violence
fuelled by largely alcohol and an inability for people to manage their
emotions and their anger occurs frequently in this community within and
around licensed premises.
Therefore there needs to be a penalty that makes it clear such behaviour
will not be tolerated in this community and makes it clear that such
behaviour, violence fuelled by alcohol and anger will be met with
significant penalty. I note that that violence occurs regularly both between
patrons of licensed premises and between patrons and crowd controllers
seeking to maintain order within licensed premises. Such violence against
crowd controllers occurs all too frequently within the community.
Having regard to my consideration of all those matters, it's my view that
even with your prospects for rehabilitation, the very serious nature of this
offence, the need for there to be particularly a general deterrence and, to a
lesser extent, although to some extent because of the steps you are already
taking, the need for personal deterrence and also the need for a penalty that
not only reflects the seriousness of this offence but also properly reflects
the condemnation and abhorrence of the community towards this kind of
violence within and around licenses premises, it is my view that the only
appropriate penalty is one of a term of imprisonment.
I reach that decision considering all other sentencing options available to
me quite carefully. Turning my mind to whether or not that sentence
should be suspended and in doing so, considering all the matters I took
into account and to which I referred to in reaching the decision that
imprisonment is the only appropriate penalty, I am not persuaded that the
term should be suspended.
The reasons for that are the serious nature of the offence and the need for
there to be a penalty particularly of general deterrence. Now I accept in
reaching that decision that a suspended sentence can operate as a general
deterrence (sic) but in these circumstances I am not of the view that
suspending the sentence in all the circumstances would be appropriate.
20 Finally, the magistrate referred to the personal circumstances of the
appellant as regards her mother and the care of her siblings. His Honour [2012] WASC 145
HALL J
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noted that it is only in exceptional circumstances that an offence otherwise
calling for a term of imprisonment could justify a lesser penalty due to the
impact on family members of the offender. The magistrate concluded that
the situation in the present case was not of such an exceptional nature.
The merits of the appeal - Was the sentence manifestly excessive?
21 The relevant principles applying to an appeal against sentence are
well-known. They are conveniently summarised in Wilson v The State of
Western Australia [2010] WASCA 82. That case related to an appeal to
the Court of Appeal under pt 3 of the Criminal Appeals Act 2004 (WA)
but the principles are materially the same for appeals from magistrates
under pt 2 of the Act.
22 A ground of appeal which alleges that a sentence is manifestly
excessive asserts the existence of an implicit error: Royer v The State of
Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126]
(Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
[6] (Gleeson CJ, Hayne J). A claim of manifest excess depends on
establishing implied error in the type or length of the sentence imposed.
The implied error that must be established is that a sentence of the nature
or length imposed could not have been reached in the exercise of proper
sentencing discretion.
23 It is not enough that an appellate court considers that it would have
imposed a different sentence; it must be established that there has been
some error in the exercise of the sentencing discretion: House v The King
(1936) 55 CLR 499, 504 - 505 (Dixon, Evert and McTiernan JJ). The
discretion that the law invests in sentencing judges is of vital importance
in the administration of criminal justice: Lowndes v The Queen [1999]
HCA 29; (1999) 195 CLR 665 [15].
24 In order to determine if a sentence is manifestly excessive it is
necessary to view it in light of the maximum penalty prescribed by law for
the offence, the standard of sentencing customarily observed for that type
of offence, the level of seriousness of the circumstances of the offending
and the personal circumstances of the offender: Chan (1989) 38
A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western
Australia [2009] WASCA 232 [12] - [13] (McLure P).
25 The maximum penalty for an offence of assault occasioning bodily
harm (when not committed in circumstances of aggravation) is 5 years'
imprisonment, with a summary conviction penalty of a maximum of
2 years' imprisonment and a fine of up to $24,000: s 317 Criminal Code. [2012] WASC 145
HALL J
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The summary conviction penalty provides a jurisdictional limit only and it
remains relevant to consider the maximum penalty even where the offence
is dealt with summarily: Wiltshire v Mafi [2010] WASCA 111.
26 During submissions the offence in this case was referred to as a
'glassing'. There is, of course, no offence strictly so described. There
have been a number of cases involving assaults in which glasses or bottles
have been used as a weapon. In many of these cases the charge preferred
was one of unlawful wounding. That is a result of the nature and extent of
the injuries inflicted. However, some of the principles may be applicable
in cases of assault where the facts are similar.
27 A summary of the sentences imposed in such cases was provided by
Martin CJ in Scolaro v Shephard (No 2) [2010] WASC 271 [202]. In that
case his Honour accepted that serious offences of unlawful wounding
committed by the use of a glass or bottle will ordinarily result in the
imposition of a significant term of imprisonment to be immediately
served. However, his Honour went on to say:
I do not mean to suggest that such a sentence will be inevitable in each and
every case of this character. On the contrary, the cases to which I referred
reveal that it would be in error in principle to adopt such a hard and fast
rule, and that established principle, and the provisions of the Sentencing
Act require detailed consideration to be given to all the relevant
circumstances in each case. Much will depend upon the circumstances of
the offence, the degree of force used, and the extent of the injury caused.
However, the seriousness of offending of this kind, and its prevalence, lead
me to conclude that the cases in which a significant term of imprisonment
to be served immediately is not imposed following a conviction for
unlawful wounding using a glass or bottle will be exceptional.
28 It is important to read the statement of the Chief Justice in context.
In referring to offences of 'this kind' it must be understood that the
conduct in Scolaro involved deliberate and forceful use of a glass to strike
the face of another, thereby causing significant injuries. It was also an
offence of unlawful wounding and not, as here, one of assault.
29 In Powell v Tickner [2010] WASCA 224 Buss JA said at [125] that
whilst each case would depend on its particular facts, a term of immediate
imprisonment would ordinarily be required for offences of unlawful
wounding where:
a) a glass has been intentionally used as a weapon and has been used
intentionally to harm the victim (even where the degree of harm
was not intended); [2012] WASC 145
HALL J
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b) the offender has not reacted instinctively to a serious provocation;
and
c) seriously disfiguring injuries (or other injuries) had been caused.
30 Factors that may be relevant in sentencing for this type of offence
include whether a glass has been used as a weapon, whether that use was
intentional, whether the glass was used deliberately against a vulnerable
part of the body, the nature and extent of the injuries, the force that was
used, whether the offence occurred on the spur of the moment, whether
there was any element of provocation and the importance of general
deterrence: Plant v Harrington [2010] WASC 364 [23].
31 In Scolaro v Shephard (No 2) it was accepted that the crime of
unlawful wounding can occur in such a wide variety of circumstances that
it is not possible to discern a range within which sentences for those
offences usually fall: see also Duggan v Coelho [2009] WASC 372. The
same conclusion is applicable to an offence of assault occasioning bodily
harm.
32 In Holden v The State of Western Australia [2009] WASCA 50 the
Court of Appeal considered sentences imposed for offences of assault
occasioning bodily harm. Wheeler JA said that it was difficult to discern
a range because of the great variation in circumstances in such cases.
However, her Honour noted that sentences of between 6 months'
suspended imprisonment to 2 years' immediate imprisonment had been
imposed in cases where there had been a plea of guilty. These comments
have also been referred to in the context of a sentence imposed by a
magistrate: Wiltshire v Mafi [42].
33 In many of the cases where a sentence of immediate imprisonment
has been held to be appropriate the use of a glass or bottle has been
deliberate. The circumstances of such cases have commonly included a
heated argument in licensed premises during which the offender has
deliberately picked up or used a glass or bottle as a weapon to attack their
opponent. Such cases have also commonly involved a deliberate attack to
the face and the incurring of significant injuries by the victim. Those
cases include Powell v Tickner, Plant v Harrington and Scolaro v
Shephard (No 2). The deliberate use of a glass implement in this way
enhances the need for general deterrence to be reflected in the sentence.
34 The circumstances of each of the three cases referred to should be
mentioned. In each of them the offence was unlawful wounding, not [2012] WASC 145
HALL J
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assault occasioning bodily harm. Whilst the maximum penalty is the
same, the difference is explained by the nature of the injuries inflicted.
35 In Powell v Tickner the complainant and the offender had a verbal
altercation at a hotel. Shortly afterwards the complainant left the hotel.
The offender told a friend what had occurred and identified the
complainant. The friend ran up and smashed a glass to the left side of the
complainant's face as he was about to get into his car. The offender then
ran up and smashed a glass into the right side of the complainant's face.
Both the offender and his friend fled the scene. The complainant suffered
major injuries that required sutures and extensive plastic surgery. A
sentence of 15 months' imprisonment was imposed on appeal.
36 In Scolaro v Shephard (No 2) the offender engaged in a verbal
altercation with the complainant in a nightclub. The offender struck the
complainant with a heavy glass to the face. The glass broke causing
significant lacerations. The complainant was treated in hospital and
required between 32 and 36 sutures from a plastic surgeon. It was
accepted on appeal that there had been a degree of provocation and the
original sentence of 18 months' immediate imprisonment was reduced to
one of 12 months' imprisonment.
37 In Plant v Harrington the offender deliberately struck the
complainant to the head with a glass. The blow was sufficiently forceful
that the glass broke. The offender and the complainant had previously
had a falling-out. The offender claimed that the complainant had spoken
sarcastically to her before the blow was struck. The complainant received
three lacerations, one of 3 cm behind her left ear and two of 1 cm each on
her collarbone area. A sentence of 8 months' immediate imprisonment
was not disturbed on appeal.
38 The present case is distinguishable from the cases I have referred to
in a number of important respects. First, it was not contended that the
glass bottle had been used deliberately by the appellant as a weapon.
There was no suggestion that the appellant had picked up the bottle in
order to use it in such a fashion. Nor was there any suggestion that she
had intended to strike the complainant with the bottle. Secondly, there
was no suggestion that the appellant had deliberately targeted the head of
the complainant. The admitted facts were that whilst she had violently
struggled against the crowd controller, that struggle had occurred in
circumstances where her movements were unfocused. Thirdly, the nature
and extent of the injuries caused was significantly less serious than in the
other cases. The statement of material facts indicated that the laceration [2012] WASC 145
HALL J
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was 1.5 cm long and did not penetrate the full thickness of the skin. This
is to be contrasted with other cases which involved multiple injuries
requiring medical treatment and, in some cases, surgery. Fourthly, whilst
it is difficult to determine with exactness the degree of force which was
used, the extent of the injuries tends to indicate that it cannot have been
great. Fifthly, this was an offence that occurred on the spur of the
moment. The incident took place in a matter of seconds and this is to be
contrasted with those cases in which there has been an escalating
argument which provided opportunities for the offender to desist in their
conduct.
39 As against the mitigating factors I accept that it was relevant for the
magistrate to take into account that the complainant in this case was a
crowd controller carrying out her lawful duties in respect of the premises.
I also accept that offences involving the use of violence on licensed
premises by persons who are intoxicated are unacceptable and deserving
of condemnation. But it is also important to ensure that each offence is
dealt with in a way that reflects the particular circumstances in which it
occurred.
40 There can be no doubt that general deterrence is an important factor,
but its significance can be affected by the circumstances of the offence. It
is certainly important to impose sentences that will deter the deliberate use
of glass or bottles in drunken fights on licensed premises, but this was not
an offence of that character.
41 It also appears that the magistrate, by referring to the prevalence of
'this kind of violence within and around licensed premises', was putting
the present offence into a very broad category which included other
conduct of a much more serious type. Not all offences of assault
occasioning bodily harm will attract the same degree of approbation.
42 To describe this as an offence of 'glassing' dangerously obscures the
fact that the glass bottle in this case was not deliberately used. Whilst the
magistrate recognised this as being an important mitigating factor and
characterised the appellant's conduct as reckless, he nevertheless imposed
a sentence which was more consistent with offences involving the
deliberate use of a glass as a weapon. While I do not detract from the
seriousness of this offence, it was clearly not one which, in all of the
circumstances, required the imposition of a sentence of imprisonment to
be immediately served. [2012] WASC 145
HALL J
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Conclusion
43 For the above reasons the sentence of 10 months' immediate
imprisonment was manifestly excessive. Accordingly, the appeal must be
allowed and the appellant resentenced.
44 In resentencing it is relevant to take into account the circumstances
that have occurred since the appellant was first sentenced. Following her
sentence the appellant filed an appeal and made an application for bail.
Bail was granted by Commissioner Sleight on 27 January 2012.
Accordingly, the appellant served approximately four weeks in prison
before being released on bail.
45 Since being released on bail the appellant has continued to attend
counselling sessions both in regard to alcohol use and anger management.
The appellant's mother continues to be treated for cancer and this has
required the mother to attend Perth for treatment every three months. The
appellant's mother has indicated that her condition requires an operation
with three weeks in hospital and ten weeks recovery during which time
she will need the support of the appellant in caring for her younger
siblings.
46 I agree with the magistrate that the personal circumstances of the
appellant as regards the care of her siblings would not necessarily justify
the conclusion that she should not by imprisoned if the offence otherwise
called for it. However, as I have reached a conclusion that a sentence of
imprisonment to be immediately served was not the appropriate penalty in
this case, it is possible for me to take these circumstances into account in a
general way in determining the appropriate sentence.
47 Having considered all of the relevant factors, it is my view that the
appropriate sentence is an intensive supervision order of 12 months
duration with a programme condition under s 73 of the Sentencing Act
1995 (WA). The programme condition will ensure that the appellant
continues with the counselling.
48 The orders of the court will therefore be that:
1. leave to appeal be granted in respect of the grounds contained in
the notice of appeal;
2. the appeal be allowed;
3. the sentence imposed by the magistrate be set aside; [2012] WASC 145
HALL J
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4. in lieu thereof the appellant be sentenced to a 12 month ISO with a
programme condition.
