JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 

TITLE OF COURT	:	THE COURT OF APPEAL (WA) 

CITATION	:	MERCANTI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 109 

CORAM	:	WHEELER JA
PULLIN JA
MILLER JA 

HEARD	:	10 JUNE 2009 

DELIVERED	:	25 JUNE 2009 

FILE NO/S	:	CACR 184 of 2008 

BETWEEN	:	TROY DESMOND MERCANTI
Appellant
 
AND
 
THE STATE OF WESTERN AUSTRALIA
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	DISTRICT COURT OF WESTERN AUSTRALIA 
Coram	:	YEATS DCJ 
File No	:	IND 1695 of 2007 

Catchwords:
Criminal law - Sentencing - Unlawfully causing grievous bodily harm - Sentence of 2 years 4 months' immediate imprisonment - Whether manifestly excessive - Whether suspended sentence open 
Legislation:
Criminal Code (WA), s 297, s 297(1) 
Result:
Leave to appeal refused
Appeal dismissed 
Category:    B 

Representation:
Counsel:
Appellant	:	Mr L M Levy SC
Respondent	:	Mr K P Bates 
Solicitors:
Appellant	:	Amidzic & Associates
Respondent	:	Director of Public Prosecutions (WA) 

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
The State of Western Australia v BLM [2009] WASCA 88
Trompler v The State of Western Australia [2008] WASCA 265

1	WHEELER JA:  I agree with Miller JA.
2	PULLIN JA:  I agree with Miller JA.
3	MILLER JA:  The appellant was convicted after trial in the District Court at Perth of one count of unlawfully causing grievous bodily harm to another.  He was sentenced to a term of immediate imprisonment of 2 years 4 months.  He seeks leave to appeal against the severity of that sentence, arguing both that the sentence was manifestly excessive and that a suspended term of imprisonment was an open disposition of the matter.  The question of leave was referred to the court for determination at the hearing of the appeal.
Indictment
4		The charge the subject of the indictment was that on 13 May 2007 at Northbridge the appellant unlawfully did grievous bodily harm to Gregory Fistonich.  The indictment alleged an offence against the provisions of s 297 of the Criminal Code (WA), a provision which provides, in s 297(1), that any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.  The term 'grievous bodily harm' is defined in s 1 of the Criminal Code in the following terms:
The term grievous bodily harm means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.
5		The maximum penalty of 10 years' imprisonment was increased from a maximum term of 7 years by s 3 of the Criminal Law Amendment Act (No 2) 1998 (WA), No 29 of 1998.
The facts
6		The facts found by the sentencing judge followed a three‑day trial, at the conclusion of which the jury found the appellant guilty of the offence charged.  The statement of facts and the findings of the sentencing judge in consequence of those facts are not challenged by the appellant.  
7		The offence occurred shortly after 5.30 am on Sunday 13 May 2007, at the Geisha Bar in Northbridge.  This bar was described by the sentencing judge as a 'Northbridge nightclub'.  

8		The complainant was a 26‑year‑old male who was celebrating his birthday on 12 May (into the hours of 13 May).  He was a big man, 195 cm in height and 120 kg in weight.  He was intoxicated when he arrived at the Geisha Bar some time after 5 am on 13 May.  The extent of his intoxication is apparent from a triple zero call which he made after the incident, in which he argued at some length with the triple zero operator about what should be done to assist him.
9		The complainant had arrived at the Geisha Bar in company with a number of friends.  One of these was Michelle Kroon.  At some time after the arrival of the complainant's group at the Geisha Bar, Ms Kroon was at the bar talking with the appellant and others who were with him.  Approximately 20 minutes after he arrived, the complainant approached Ms Kroon and, as the sentencing judge found, 'draped himself around' her.  At the same time, he appears to have spoken to the appellant and video footage of the incident shows clearly the complainant speaking directly into the appellant's ear.  The sentencing judge found that she was satisfied that this was done because of the noise level in the nightclub.  Her Honour also found that the appellant spoke to the complainant.
10		The sentencing judge concluded that the complainant was not aggressive in either speech or actions.  Although at one point of time he appears to have had his hand or hands up with his palm towards the appellant, the sentencing judge concluded that he was probably just making a gesture in the course of conversation.  Having seen the video footage, I would respectfully agree with that view.  
11		Suddenly, and without warning, the appellant punched the complainant to the right side of the jaw.  He punched him with such force that the complainant's jaw was broken and he lost several teeth.  He was rendered unconscious and fell to the floor.  
12		The sentencing judge concluded that (consistent with the verdict of the jury) the appellant was not acting in self‑defence when he assaulted the complainant.  Her Honour also noted that the appellant was not intoxicated, whereas the complainant was obviously intoxicated and was behaving as an intoxicated man.  
13		The sentencing judge declined to accept that the appellant honestly believed that he was about to be assaulted.  Her Honour concluded that 'everything in the offender's behaviour … was quite different from a man who had any concern or any fear or was himself under any sort of attack'.
14		The sentencing judge was satisfied beyond reasonable doubt that the appellant did not at any time honestly believe that it was necessary for him to use the degree of force that he did against the complainant.
Sentencing
15		The sentencing judge concluded that the complainant's injury constituted grievous bodily harm, but that it was not 'the worst kind of grievous bodily harm'.  She said:
He has virtually recovered, although he will, I'm sure, through his whole life have problems with his jaw.  That's clear.  They aren't doing any more surgery.
He originally had surgery and a plate put in to hold his jaw in position.  The plate broke and [now] he has other techniques being used, so he is going to be aware that he has had that injury for his life.
16		In sentencing the appellant, the sentencing judge took account of the appellant's personal circumstances.  He was 41 years of age and was said to have 'a very lengthy record of charges for serious crimes of violence and has regularly been acquitted or the charges have been discontinued'.  
17		It would seem that annexed to an antecedent report there was a 'list of outcomes report' which showed all matters in respect of which the appellant had been charged, notwithstanding that the charges may have resulted in an acquittal or discontinuance.
18		However, the sentencing judge appreciated that previous acquittals were irrelevant.  Her Honour said:
My sentence must reflect the seriousness of this offence.  I must ignore any irrelevant factors, his previous membership in the Coffin Cheaters, his previous acquittals, having charges withdrawn.
I am required to ignore any publicity surrounding him and his criminal associations.
19		The sentencing judge did make mention of convictions which had been sustained by the appellant.  He had been convicted of assault occasioning bodily harm on 9 March 1993, when he was fined $2,500.  He had also been convicted of common assault on 2 August 1993 and fined $400.
20		The sentencing judge also made mention of a conviction in June 2007 for the offence of common assault, noting that this offence had taken place within a month after the offence the subject of the indictment and at a time when the appellant would have been on bail.  Her Honour also said that she had been told that the appellant was on bail for other assault offences at the time he committed the offence the subject of the indictment.
21		The fact that the appellant was convicted for an offence which occurred after that which was the subject of the indictment was relevant only to the issue of the appellant's character.  Because of the later conviction, it could not be said that he was a person of good character.  In any event, his earlier convictions in 1993 told against his good character.  
22		Other personal circumstances to which the sentencing judge referred were those relating to the appellant's domestic relationship.  He had a partner and two children from that relationship.  He also cared for a 13‑year‑old daughter from a previous relationship.
23		In considering the circumstances of the offence committed by the appellant, the sentencing judge accepted that the offence was not premeditated.  Her Honour also accepted that after the appellant had punched the complainant and the complainant had fallen to the ground unconscious, the appellant stopped others from doing anything further to the complainant.  These were factors which her Honour said could be taken into account by way of mitigation.
24		Further, the sentencing judge noted that the incident had happened quickly.  It had all happened 'within 48 seconds after your first meeting with him ... it was not premeditated and it was somewhat spontaneous'.
25		The sentencing judge was, however, 'troubled' by what she saw on the video footage.  Her Honour said:
I was troubled, however, and watched and have watched numerous times your behaviour immediately before you punched him.  It does not seem to me that it was so spontaneous that you didn't know that you were going to hit him.  It seemed to me you positioned him so that you had the room and the space you needed, and him in the appropriate position, for you to hit him in a way that knocked him down, that he wasn't going to ever turn back on you.
So that in a way, although it was not premeditated, it does have some element.  You certainly know how to - you are [a] very powerful man and you know how to deal with your fists and how to deal with people.  Now, looking at the side of aggravation, I think it is extremely important to look at the fact that Mr Fistonich was himself, although a very large man, an intoxicated man.  He was vulnerable.
26		The sentencing judge considered that there were no mitigating circumstances in favour of the appellant by way of either remorse or age.  Her Honour accepted that the offence fell 'towards the lower end of the scale', mainly because the complainant did not suffer severe injury.  Her Honour made some general observations about violence in nightclubs and pubs, and the fact that young people should be able to enjoy a night out without risking death or permanent injury, and then turned to the question of sentence.
27		Her Honour concluded that a sentence of imprisonment was required and that a starting point for the sentence was 3 years 6 months which was to be reduced by one‑third to take account of the transitional provisions, leaving a sentence of 2 years 4 months.
28		Her Honour then considered carefully whether she could suspend the sentence, but took the view that the offence was too serious to allow for suspension.  In the factors relevant to seriousness, her Honour noted the appellant's age, the fact that he was not intoxicated and the fact that he assaulted a very intoxicated man.
Grounds of appeal
29		The grounds of appeal are in the following terms:
1.	The learned sentencing Judge erred in the exercise of her sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances of the offence and matters personal to the appellant.
Particulars
1.1	The sentence imposed was manifestly excessive in light of the following factors:
a)	The maximum penalty for the offence of unlawfully causing grievous bodily harm being 10 years imprisonment and an analysis of sentences imposed in cases involving offences towards the lower end of the scale of grievous bodily harm offences.
b)	The finding by the learned sentencing Judge that the offence was 'towards the lower end of the scale [of unlawfully causing grievous bodily harm]'.
c)	The offence was not premeditated.
d)	The nature of the assault being a punch or punches committed in a very short space of time.
e)	There was some degree of provocation.
f)	The nature of the injuries that were sustained by the complainant were towards the lower end of the scale of grievous bodily harm.
2.	The learned sentencing Judge erred by failing to properly consider the imposition of a suspended term of imprisonment.
Particulars
2.1	The learned sentencing Judge erred in concluding that a suspended sentence was not open in light of her findings that:
a)	the finding by the learned sentencing Judge that the offence was towards the lower end of the scale of grievous bodily harm; and
b)	'the factors that convinced [Her Honour] that this offence is simply too serious for [Her Honour] to allow for a suspended term of imprisonment' included:
a)	The appellant's age [he was 41 at the time of sentencing];
b)	the fact that the appellant was not intoxicated at the relevant time; and
c)	the fact that he had assaulted a very intoxicated man.
Ground 1
30		This ground complains that the sentence imposed was manifestly excessive.  Reliance was placed by counsel for the appellant upon the fact that the harm suffered by the complainant was towards the lower end of the scale of grievous bodily harm, and although the injury may have been significant, it was not life threatening, nor did it leave any significant long‑term disability.  Reference was made to the fact that the sentencing judge had concluded that the complainant had virtually recovered and that the injury was not the worst kind of grievous bodily harm.
31		Counsel for the appellant also stressed that there was no weapon involved, nor was there any kicking.  There were two or three punches thrown in quick succession, only one of which appears to have connected.  There was then an immediate desisting by the appellant of any further violence.  
32		Counsel for the appellant also stressed that the incident was not premeditated and that the sentencing judge concluded that the offence fell towards the lower end of the scale for offences of grievous bodily harm. 
33		Reference was made to a number of authorities.  None of those authorities establish any tariff for the offence of grievous bodily harm.  
34		The general range of sentences imposed in cases of grievous bodily harm appears to be 8 months to 5 years 4 months.  In Trompler v The State of Western Australia [2008] WASCA 265, McLure JA (who was in dissent about the outcome of the case, but whose observations about range are uncontentious) said at [38]:
The sentences actually imposed for offences of this type have a post‑transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149).  I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327).  
Wheeler JA, with whom Buss JA agreed, said at [19]:
I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm.  They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years.  Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post‑transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind.
35		Accepting that the general range established in cases of grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 ‑ 5 years for offences towards the upper end of the range, the sentence imposed upon the appellant would appear to fall below the bottom end of the range posited by Wheeler JA in Trompler.
36		The ranges which I have referred are 'post‑transitional' ranges and, in the light of The State of Western Australia v BLM [2009] WASCA 88 (per Wheeler and Pullin JJA at [43]), this is the appropriate range to apply.
37		The appellant's complaint is that because the sentencing judge concluded that the offence fell 'towards the lower end of the scale' the sentence of 2 years 4 months' imprisonment was manifestly excessive.  It was contended that this was particularly so, having regard to the fact that the offence was not premeditated and that the injuries sustained by the complainant were towards the lower end of the scale of grievous bodily harm.  
38		I am unpersuaded by the appellant's argument.  The range of sentences which has been imposed for offences of grievous bodily harm (in post‑transitional terms) has been between 8 months and 5 years 4 months, with offences towards the upper end of the range attracting sentences of between 3 and 5 years' imprisonment.  The sentence in this case has to be considered in light of the fact that the appellant had very little in his favour in terms of mitigatory factors.  He had pleaded not guilty to the offence alleged, could not be said to be a person of good character, was of mature age, and had hit the complainant with significant force, in circumstances which offered no mitigation whatever.  All that could be said in his favour was that the offence and the injury itself fell at the lower end of the scale.
39		In my opinion, the sentence imposed was one which reflected these facts.  The sentence of 2 years 4 months' imprisonment was below the minimum of the range usually imposed for offences towards the upper end of seriousness for offences of grievous bodily harm, and was within the range to which McLure JA adverted in Trompler at [38].  In my opinion, it properly reflected the circumstances of the offence and the personal circumstances of the appellant.  I would therefore refuse leave to appeal on ground 1.
Ground 2
40		This ground contends that the sentencing judge erred in failing to properly consider the imposition of a suspended term of imprisonment.  
41		At the hearing of the appeal, counsel for the appellant appreciated that this ground was a difficult one to maintain.  In my opinion, it is impossible to maintain.  The sentencing judge gave careful consideration to the question whether the sentence of imprisonment could be suspended, and complied with the requirements of Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.  Her Honour's conclusion was that the offence was simply too serious to allow for suspension of the term of imprisonment.  Factors which went to the seriousness included the age of the appellant, the fact that he was not intoxicated but the complainant was, and that he had assaulted the complainant in the circumstances in which he did.
42		I agree with the sentencing judge that the offence was too serious to allow for suspension of the term of imprisonment.  Although a term of suspended imprisonment may be open in cases of unlawfully doing grievous bodily harm, the range of sentences referred to by McLure JA in Trompler at [38] illustrates that normally sentences of immediate imprisonment will be imposed in cases of this nature.  Certainly in this case there is no basis for suggesting that the sentencing judge erred in concluding that the offence was too serious to allow for suspension.  I would therefore refuse leave to appeal on ground 2.
43		For the reasons that I have set out, I would refuse leave to appeal and dismiss the appeal.