The Court held that s 7(3) of the Sentencing Act 1995 (WA) altered the De Simoni principle, so that a sentencing court may take into account as an aggravating factor harm that would constitute a more serious offence (here, grievous bodily harm) even where the offender was only charged with assault occasioning bodily harm. Lewis v Polidano [2003] WASCA 312, which had applied De Simoni to preclude reliance on such facts, was expressly not followed. The sentence of 15 months' immediate imprisonment for an unprovoked one-punch assault causing loss of smell and impaired taste was held to be within range and not manifestly excessive, and the refusal to suspend was open to the magistrate given the seriousness of the consequences and the need for general deterrence.
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