Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Grievous bodily harm with intent - Manifest inadequacy - Circumstances of offending high on the scale of seriousness, just short of the worst category - Whether context of domestic violence an aggravating factor

Sentencing Act 1995 (WA), s 9AA

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Abfahr v The State of Western Australia [2013] WASCA 87

Bolton v The State of Western Australia [2012] WASCA 2

Eriha v The State of Western Australia [2011] WASCA 167

Fernandes v The State of Western Australia [2009] WASCA 227

McCormack v The Queen [2000] WASCA 139

Minhaj v The Queen [2000] WASCA 52

Papas v The State of Western Australia [2011] WASCA 3

Petrelis v The State of Western Australia [2012] WASCA 235

Poduti v The State of Western Australia [2011] WASCA 169

Rolfe v The State of Western Australia [2012] WASCA 169

Seroka v The State of Western Australia [2006] WASCA 284

Smith v The Queen [2003] WASCA 57

Stephens v The State of Western Australia [2005] WASCA 98

The State of Western Australia v BLM [2009] WASCA 88

Ugle v The Queen [2001] WASCA 268

Vilai v The Queen [1999] WASCA 275

Wainwright v The State of Western Australia [2005] WASCA 250

Wells v The State of Western Australia [2013] WASCA 124

Zhang v The State of Western Australia [2013] WASCA 121

1 McLURE P: This is a State appeal against sentence. The respondent was originally charged with a single count of attempted murder contrary to s 283(1) of the Criminal Code (WA) (the Code). After negotiations, the State accepted a plea of guilty to a substituted charge of doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm, contrary to s 294(1) of the Code. The respondent pleaded guilty to the substituted charge. On 1 November 2012 McCann DCJ sentenced the respondent to 5 years' imprisonment. He was made eligible for parole. The sole ground of appeal is that the sentence is manifestly inadequate.

2 The facts of the offending are as follows. The respondent and the victim were married in June 2010 and have a daughter who was less than 4 months old at the time of the offence, which was committed on 13 September 2011. The relationship between the respondent and the victim ended on 8 September 2011 and the respondent moved out of the unit in which they were living. He returned to the unit on two occasions before the date of the offence.

3 On 10 September 2011 he returned with his parents to remove his property from the unit. Because of his behaviour, the victim telephoned the police. By the time police attended, the respondent and his parents had left.

4 The respondent returned to the unit on the evening of 12 September 2011. The victim asked him to leave, but he refused. She called the police who attended and served the respondent with a 24-hour move-on notice which prohibited him from attending the address until 8.00 pm on 13 September 2011. At about 11.00 pm on 13 September 2011, the victim returned home with her daughter and entered the unit. After checking the unit to ensure no-one else was present, she secured the premises. The respondent then entered the unit using his own key. He went directly to confront the victim in the kitchen. She turned around and saw the respondent standing about 1 m away from her with his left hand behind his back. The respondent struck the victim to the top of her head causing her to fall to the floor. He placed his hands around the victim's neck with a firm grip. The victim moved her head from side to side in an attempt to break the grip. She managed to get to her feet. The respondent then opened the cutlery drawer and removed a large kitchen knife while holding the victim's left arm. The knife had a serrated cutting edge.

5 The respondent stabbed the victim with the knife in the left rear shoulder. The victim again fell to the floor. The respondent stabbed the victim multiple times to the body, arms, neck, face and scalp. She also received knife wounds to a thumb and some fingers.

6 The victim, in fear for her life, managed to get up and run to the front door while screaming for help. The respondent chased after her and continued to stab her in the back as she ran from the unit. CCTV footage from an adjoining unit showed the victim running from her unit with the respondent chasing her. The respondent ran from the area, dropping the knife as he left. The knife was bent at a 90 degree angle, indicating the force with which it had been used.

7 The victim almost died at the scene due to blood loss and a ruptured spleen. She was taken to hospital where she was treated for 12 stab wounds to her abdomen, scapula, face, back and arms. There were more than 12 blows inflicted with the knife, but not all of them caused wounds as the victim had attempted to defend herself from the blows.

8 The respondent slashed both of the victim's cheeks. An 8 cm wound to the right cheek was superficial but a 10 cm wound on her left cheek cut through to the muscle and exposed and slightly damaged her gland. The victim also suffered a ruptured eardrum. She spent 11 days in hospital and underwent multiple surgical procedures. The injuries to her spleen were life threatening in the absence of medical treatment.

9 The victim has suffered permanent scarring to both cheeks, her torso, under her right breast and on her left shoulder. Her right thumb is permanently disabled, as is her left hand. The respondent disfigured the victim for life.

10 The sentencing judge made a number of unchallenged findings of fact. They include that:

- the respondent had been at the unit or nearby for over an hour before the victim arrived and he had time to think about what would happen when he got inside;

- the respondent had full comprehension of what he was doing at the time of the offence and still had full comprehension at the time of sentencing;

- the respondent went to the unit with the intention of confronting the victim and assaulting her, but had not formed an intention to do grievous bodily harm or maim her at that point;

- the respondent took the knife out of the drawer when the victim resisted his attempts to 'throttle' her;

- when the respondent had the knife he intended to do grievous bodily harm to the victim and to disfigure her;

- the respondent hated the victim because she had taken control of her own life, had brought in the police and resisted his initial assault;

- it would be surprising if the victim ever recovered much of the use of her hands given she had not done so by the time of sentencing. In any event, she would continue to suffer physically, psychologically and emotionally for life;

- the respondent deliberately maimed his 'beautiful wife so as to render her no longer beautiful'.

11 The last finding is supported by the victim impact statement which discloses, in the sentencing judge's words, that the victim 'is an emotional wreck, highly dependent on others, is unemployed, depressed and cannot stand the sight of herself'.

12 The respondent pleaded guilty to the s 294(1) offence on the fast-track system although, as his Honour noted, he 'really never had a defence' to that offence.

13 The respondent was aged 24 at the time of the offending. He was raised in a respected, close knit family. He finished Year 12 at school and had a good employment history.

14 The respondent had a relatively minor record of offending, the penalty for each offence being a fine. A significant conviction was that recorded on 26 October 2009 for the offence of assault occasioning bodily harm for which he was fined $5,000. That offence involved the respondent repeatedly punching another person, causing a chipped tooth. The altercation stopped when security guards intervened.

15 The sentencing judge found that the respondent was intoxicated when he committed the offence and by that stage was 'already an antisocial troublemaker with a violent propensity when intoxicated'. He also accepted that the respondent was remorseful and had accepted responsibility for the offence but found that there was a self-pitying aspect which was consistent with the psychological report indicating that he displayed some narcissistic personality features.

16 The sentencing judge concluded that this case was not in the worst category with the consequence that the sentencing range established under the transitional provisions remained applicable: The State of Western Australia v BLM [2009] WASCA 88 [43]. He concluded it was at the upper end of the category below the worst category.

17 A sentence is manifestly inadequate if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly inadequate regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offence and the offender's personal circumstances.

18 The maximum penalty for the offence committed by the respondent is 20 years' imprisonment. The circumstances of the respondent's offending place it high on the scale of seriousness just short of the worst category.

19 The attack was ferocious and sustained, involving more than 12 strikes with the knife. The respondent kept stabbing the victim in the back as she was running away from him.

20 The respondent's attack on the victim before he picked up the knife was premeditated and wilful; he waited more than an hour for the victim to return home and entered the unit knowing that his wife did not want him there, she having called the police the night before. The injuries inflicted on the victim by the respondent with the knife were inflicted with the intention, and had the effect, of causing grievous bodily harm and disfiguring the victim's face and other parts of her body.

21 Although the offence occurred in the context of a dysfunctional relationship breaking down, the respondent acted out of hate related to his wife's attempt to take control of her own life.

22 Not only did the injuries threaten the victim's life, their impact on her has been severe and permanent. In particular:

- she had lost the use of one hand, and the use of her thumb on the other hand, effectively depriving her of the proper use of that hand. It appeared the losses would be permanent;

- she had lost a valued career and was unable to work;

- she had lost the capacity to perform ordinary domestic tasks and was unable to drive;

- she could no longer look after her daughter on her own and her capacity to show physical affection to the child was impaired;

- in addition to her physical disabilities she described living with depression, fear and self-loathing. She considered her beauty was taken from her, having been left with terrible facial and other scarring;

- her permanent disfigurement would serve as constant reminder of the offence.

23 I turn now to the standards of sentencing customarily imposed. The purpose of referring to sentences customarily imposed is to ensure that the sentence imposed on an offender is, having regard to all sentencing variables and in the knowledge that there is no single correct sentence, broadly consistent with sentences imposed in comparable cases: Poduti v The State of Western Australia [2011] WASCA 169 [14]. The range of sentences customarily imposed does not establish the range of a sound sentencing discretion: Fernandes v The State of Western Australia [2009] WASCA 227 [15]. For example, the process of 'firming up' sentences in response to prevailing circumstances, such as an increase in prevalence, is a well-accepted phenomenon.

24 In order to compare like with like, I propose to convert pre-31 August 2003 sentences to their transitional equivalent under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The sentencing range established under the transitional provisions continue to be applicable unless the case is in the worst category: BLM [43].

25 For ease of reference, I propose to consider the cases in two categories, the first being where there was a plea of guilty, which ordinarily attracts a significant discount in the length of the otherwise appropriate sentence, and the second being sentences imposed after trial. The cases in which there was a plea of guilty include Eriha v The State of Western Australia [2011] WASCA 167; Rolfe v The State of Western Australia [2012] WASCA 169; Wainwright v The State of Western Australia [2005] WASCA 250; and Ugle v The Queen [2001] WASCA 268.

26 In Eriha, the offender was convicted of unlawfully doing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to 9 years' imprisonment for that offence. The victim was in effect tortured for a very lengthy period. It was held to be in the worst category of offending and thus the sentencing range established under the transitional provisions was not applicable. The offender had relevant prior convictions. There were a number of mitigating factors including an early plea of guilty, relative youth (aged 22 at the time of the offence), remorse and some steps towards rehabilitation.

27 In Rolfe, the offender was convicted of unlawfully doing grievous bodily harm with intent to cause grievous bodily harm. He was sentenced to 5 years' imprisonment for that offence. The offender and two others, armed with a machete and a block splitter, attended a residence to collect an alleged debt. The offender, wielding the machete, lacerated the neck and right palm of one complainant and struck another complainant several times to the palms of his hands. The second complainant suffered permanent injuries to his right hand. The second complainant was also struck on the back of the head by a co-offender wielding the block splitter. The offender had a substantial, relevant prior criminal history. The only significant mitigating factor was a fast-track plea of guilty.

28 In Wainwright, the offender was convicted of unlawful wounding with intent to do grievous bodily harm. He was sentenced to 4 years 7 months for that offence (reduced by 5 months because of the inability to backdate for time spent in custody). The offender, a 34-year-old male, stabbed the mother of his son a number of times, including to the anterior left side of the chest. The offence occurred during a Family Court ordered access visit. The mitigating factors included an early plea of guilty, no relevant prior convictions and remorse.

29 In Ugle, the offender was convicted of unlawful wounding with intent to do grievous bodily harm. He was sentenced to 4 years' imprisonment (post-transitional). The offender stabbed the victim, his former girlfriend, with a knife numerous times to her chest, back and neck. The victim blocked his attempt to stab her in the face. No permanent injury was occasioned. The offender had a significant relevant record of prior convictions. The only significant mitigating factor was his plea of guilty.

30 The relevant cases involving a plea of not guilty include Zhang v The State of Western Australia [2013] WASCA 121; Minhaj v The Queen [2000] WASCA 52; Petrelis v The State of Western Australia [2012] WASCA 235; Wells v The State of Western Australia [2013] WASCA 124; Stephens v The State of Western Australia [2005] WASCA 98; McCormack v The Queen [2000] WASCA 139; Smith v The Queen [2003] WASCA 57; Vilai v The Queen [1999] WASCA 275; Bolton v The State of Western Australia [2012] WASCA 2; and Abfahr v The State of Western Australia [2013] WASCA 87.

31 In Zhang, the offender was convicted of unlawfully doing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to 8 years 6 months' imprisonment. As a result of workplace tensions between the offender and the victim, the offender deliberately drove his vehicle at very high speed at, and collided with, the victim. The victim suffered multiple fractures (including to the spine, rib, skull, nasal bones, nasal septum and knee), nerve injuries and a closed head injury. The sentencing judge found that he suffered significant psychological injuries which would continue for many years if not indefinitely. The offender had no prior convictions. The only significant mitigating factor was that the offender was suffering from a mental impairment which, to some extent, caused his offending.

32 In Minhaj, the offender was convicted of unlawfully doing grievous bodily harm with intent to maim, disfigure or disable. He was sentenced to 8 years' imprisonment (post-transitional). After striking his wife on the nose, the offender followed her to the toilet where she was breastfeeding her 7-month-old daughter and assisting her 3-year-old son. The offender deliberately set his wife alight after throwing mineral turpentine over her. The victim suffered permanent scarring of her body and face and psychological damage. The offender helped his wife put out the flames. The offender had no prior convictions. However, he showed no real remorse. Apart from assisting to put out the flames, there were no other mitigating factors.

33 In Petrelis, the offender was convicted of doing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to 7 years 9 months' imprisonment. In breach of a violence restraining order the offender went to the home of his former wife. It was night time and he was intoxicated by methylamphetamine. The offender was let inside by the victim although she did not want him there. His children were present. Upset by her indifference, he armed himself with a large knife and attacked her, stabbing her many times. She ran to the bedroom where the offender struck her repeatedly with his hands. The elder child entered the bedroom. The victim made her escape after grabbing the offender's crotch and biting his finger. The victim suffered some permanent scarring, some residual loss of feeling in her fingers and some continuing pain and physical weakness. There was no premeditation or planning. The offender had no prior record but was on bail at the time of the offence. There were no significant mitigating factors.

34 In Wells, the offender was convicted of causing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to 6 years 6 months' imprisonment. The offence involved a vicious unprovoked attack with a weapon, from behind, involving extremely severe force to the victim's head. The victim suffered significant ongoing physical difficulties in combination with serious emotional problems. The offender had a long record of prior convictions, including for a number for offences involving violence, including domestic violence. Apart from mental health issues, there were no matters of mitigation.

35 In Stephens, the offender was convicted of causing grievous bodily harm with intent to maim, disfigure, disable or cause grievous bodily harm. He was sentenced to 6 years' imprisonment. The offender pursued the victim, who was on foot, in his 4-wheel drive. The offender taunted the victim by driving close behind him, but stopping before hitting him. Eventually the victim slipped and fell under the 4-wheel drive, becoming wedged beneath it. Realising what had occurred, the offender deliberately drove his vehicle forward some 30 m. The victim suffered permanent, physical and emotional injuries. The offender had a minor record. He was relatively young at the time of the offence (24), was remorseful and had taken steps towards rehabilitation.

36 In McCormack, the offender was convicted of doing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to 5 years 4 months' imprisonment (post-transitional). The offender was angry at his wife's internet relationship with another man. After brooding over this, he stabbed his wife in the back with a serrated steak knife. She was either asleep or attempting to sleep at the time. The offender attempted to stab her further but she flailed her arms and legs, causing a number of superficial wounds to be inflicted. The victim got off the bed and ran away but the offender stabbed her again in the back of the neck. One of the stab wounds caused her left lung to collapse. There was no finding that the victim suffered any permanent disability. The offender, who made an unsuccessful suicide attempt immediately after the offence, suffered chronic depression and anxiety and had no prior record of relevant offending.

37 In Smith, the offender was convicted of unlawfully doing grievous bodily harm with intent to disable. On a Crown appeal, the offender's sentence was increased from 4 years to 5 years 4 months (post-transitional). The offender inflicted two stab wounds to the victim, one to the neck resulting in a gaping 10 cm wound to the throat. The other stab wound was to the victim's leg. The offender left the victim for dead and took measures to avoid detection. The offender had intended to rob the victim and formed the intention of disabling him for the purpose of making good his escape. There was no finding that the victim suffered any permanent disability. The offender showed no remorse. The only mitigating factors were the offender's youth and his prior good record.

38 In Vilai, the offender was convicted of unlawful wounding with intent to do grievous bodily harm. He was sentenced to 5 years 4 months' imprisonment (post-transitional). The offender stabbed his former girlfriend with a knife multiple times. The victim had nine stab wounds, eight of which had not penetrated the subcutaneous tissue. One stabbing caused a serious wound to her liver. She suffered permanent scarring in more than one area. The offender had no relevant prior convictions.

39 In Bolton, the offender was convicted of one count of unlawfully doing grievous bodily harm with intent to maim, disable or do grievous bodily harm and one count of unlawful wounding with intent to maim, disable or do grievous bodily harm. He was sentenced to 5 years' imprisonment on the former and 4 years 6 months' imprisonment on the latter offence. In the course of an affray between members of feuding Aboriginal families, the offender deliberately fired two shotgun blasts, one hitting a woman who was pushing the intended target out of the way, perforating her bowel. The second shot struck a man in the lower left quadrant of his abdomen, close to his hip. There was no finding that the wounds caused permanent damage to either victim. The offender had no relevant prior convictions. There were no significant mitigating factors.

40 In Abfahr, the offender was convicted of doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm. He was sentenced to 5 years' imprisonment for that offence. The offender and the victim were married. The relationship had been marred by repeated incidents of domestic violence. In June 2010 the Family Court of Western Australia granted the victim custody of the couple's two children. On 4 October 2010 the offender was served with an interim violence restraining order. After receiving a telephone call on 5 October 2010 from his children, the offender drove his motor vehicle towards Fremantle. He saw the victim waiting for a bus. She saw the offender carry out a U-turn and drive back in her direction. The victim got on a bus, travelled some distance and then got off the bus and walked along a footpath. The offender, driving his vehicle, saw the victim. He drove some distance down the road, mounted the footpath and struck the victim with the middle of the bonnet of his vehicle. She was thrown in the air and landed on the pavement. The victim suffered a broken right femur, a broken left ankle, a broken nasal bone and soft tissue injuries. The offender had a complete lack of empathy and remorse and refused to accept responsibility for what he had done. The offender had a very good work ethic and no relevant prior criminal record. Otherwise, there was no mitigation.

41 In its review of the cases, the State confined its attention to situations involving domestic violence. That is consistent with the sentencing judge's finding, in effect, that the commission of the offence in a domestic context, is an aggravating factor. I am not persuaded that the sentencing subtleties are appropriately conveyed by characterising the domestic relationship (whether past, existing or anticipated) setting as itself aggravating the offending.

42 The court in McCormack implicitly approved the sentencing judge's observations on the subject as follows:

[The sentencing judge] pointed out that the maximum penalty for the offence is one of 20 years' imprisonment, and he indicated that the sentence which he would impose had to mark the concern which the community has towards violent confrontations. He emphasised also the need for both personal and general deterrence in cases of domestic violence, which poses a very real problem in the community. As he indicated, no form of domestic violence is acceptable, and when it includes the use of a weapon of any description, it becomes absolutely intolerable [25].

43 Having regard to the facts in McCormack, the message is unmistakeable. On some occasions, domestic violence is connected with conduct in, or concerning, the relationship that understandably generates high emotion, volatility and associated loss of control. However, prevalence being an issue, that is not to be taken as mitigatory: Ugle at [37]; Papas v The State of Western Australia [2011] WASCA 3 [16]. Deterrence is called for in relation to all offences involving serious violence, domestic and otherwise.

44 As is borne out by the review, it is to be expected that the sentences imposed for an offence under s 294(1) of the Code in a domestic context would be broadly consistent with the standards of sentencing customarily imposed more generally. There is no justification for confining the survey of sentences customarily imposed to a subcategory of domestic violence.

45 What is clear from an analysis of all the cases is that the objective circumstances of the respondent's offending are materially more serious than Minhaj and Petrelis and substantially more serious than all of the other cases in the survey including McCormack. Wainwright, Ugle and Vilai all involved unlawful wounding rather than the more serious outcome of grievous bodily harm.

46 I have explained above why the circumstances of the respondent's offending place it high on the scale of seriousness just short of the worst category. The premeditated confrontation, the ferocious and sustained attack, the nature and extent of the intentionally inflicted harm and its tragic effect on the life of the victim justify that assessment. What significantly aggravates the offending is that not only did the respondent intend to do the victim grievous bodily harm, he also intentionally disfigured the victim's face and other parts of her body. Notwithstanding the early plea of guilty and other mitigatory factors, the sentence of 5 years' imprisonment is manifestly inadequate.

47 It is necessary for this court to resentence the respondent, it having the necessary materials to do so. On resentencing, s 9AA of the Sentencing Act 1995 (WA) applies. There is no challenge to the sentencing judge's finding that the respondent pleaded guilty at the first reasonable opportunity. In those circumstances, I would reduce the head sentence by 25%. Having regard to all relevant sentencing considerations, I would impose a term of imprisonment of 7 years backdated to 14 September 2011. I would not interfere with the order for eligibility for parole. Accordingly, the respondent will become eligible for release on parole on 14 September 2016.