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Bryant v. Witts - (27 Jun 2018)

Sentencing is a discretionary exercise. An Appellate Court can intervene, only if, Appellant demonstrates either an express or implied error

Criminal

The Appellant seeks an extension of time within which to appeal and leave to appeal a total sentence of 22 months immediate imprisonment imposed by a magistrate on 22nd November, 2017 for two offences of aggravated unlawful assault contrary to Section 313(1)(a) of the Criminal Code (WA) (Code), four offences of aggravated unlawful assault causing bodily harm contrary to Section 317(1)(a) of the Code, and one offence of cruelty to an animal causing it unnecessary harm contrary to Section 19(1) and Section 19(2)(e) of the Animal Welfare Act, 2002 (WA).

The relevant aggravating circumstance for each of the unlawful assault and unlawful assault causing bodily harm offences was that, the Appellant was in a family and domestic relationship with the complainant. The pleaded grounds of appeal are that, the total effective sentence of 22 months immediate imprisonment was manifestly excessive in all the circumstances and infringed the first limb of the totality principle. There was an error of law in that given the circumstances of the offending and the Appellant's antecedents, the sentence of imprisonment was not suspended.

The general principles to be applied by an Appellate Court in determining if a total effective sentence imposed infringes the totality principle are well established. Sentencing is a discretionary exercise. An Appellate Court can intervene only if the Appellant demonstrates either an express or implied error. Where, as in this case, the allegation is one of implied error, namely that the total sentence imposed was manifestly excessive, the Court cannot substitute its own opinion for that of the sentencing court merely because the Appellate Court would have exercised a sentencing discretion differently. Rather, the appeal Court must be satisfied that the total sentence imposed was so unreasonable or unjust that the court must conclude that, a substantial wrong has occurred.

The first limb of the totality principle requires that, the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.

The fact that the Appellant may well have had a borderline personality disorder was not a mitigatory factor, although the existence of this condition may have provided part of the explanation for the Appellant's conduct in committing the offences. The Appellant had, as the magistrate noted, been assessed by the psychologist as being at high risk of engaging in violence towards future intimate partners. The Appellant's high risk of future offending in this way meant that, the sentencing considerations of personal deterrence and, albeit to a lesser extent, protection of the public were of relevance when it came to determining the total effective sentence to be imposed on the appellant. There was, as the magistrate recognised, a need to impose a sentence that was capable of acting as a general deterrent.

In view of overall criminality of the Appellant in committing all of the offences, the Appellant's personal circumstances including his age and relatively good criminal record, the appellant's pleas of guilty, the Appellant's failure to fully accept responsibility for his offending, the Appellant's failure to demonstrate genuine remorse, the Appellant's risk of reoffending, the need to give effect to the sentencing considerations of personal and general deterrence, and the total effective sentences imposed in comparable cases, a total sentence of 22 months imprisonment cannot be said to be so unreasonable or unjust as to manifest error. It was open to the Magistrate in the exercise of his sentencing discretion to arrive at the sentence of 22 months imprisonment.

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 appeal 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. It was, open for the magistrate to conclude that, the less serious sentencing option of suspending imprisonment was not appropriate. Even making full allowance for the mitigatory factors, the imposition of immediate terms of imprisonment did not fall outside a sound exercise of the magistrate's sentencing discretion. Appeal dismissed.

Tags : CONVICTION   SENTENCE   VALIDITY  

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