Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Application for leave to appeal against sentence - Whether lack of certainty of sentence imposed - Whether structure of sentencing remarks indicated error - Whether sentence for attempted murder manifestly excessive - Whether reasonable prospects of success - Turns on own facts

Criminal Appeals Act 2004 (WA), s 27(2)

Aldridge v The Queen, unreported; CCA SCt of WA; Library No 980206; 23 April 1998

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Byfield [2002] WASCA 260; (2002) 133 A Crim R 307

R v Tait (1979) 24 ALR 473

Re The State of Western Australia; Ex parte Osman [2005] WASCA 189

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

R v Thomson [2000] NSWCCA 309; (2000) 115 A Crim R 104

1 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence. On 2 May 2005 the applicant pleaded guilty to three offences. They were presented on two indictments. Indictment 246 of 2004 contained one count of attempted murder contrary to s 283 of the Criminal Code WA ("the Code") and one of aggravated burglary contrary to s 401 of the Code. The statutory maximum penalty for attempted murder is imprisonment for life and for aggravated burglary it is 20 years' imprisonment.

2 The second indictment was 64 of 2005. It contained one count of armed robbery contrary to s 392 of the Code. The statutory maximum punishment for that offence is life imprisonment.

3 The facts and sentencing submissions were presented to the sentencing Judge on 2 May 2005. The following day at 9.30 am the sentencing hearing resumed, at the conclusion of which his Honour sentenced the applicant to a total of 10 years' imprisonment.

4 That comprised a term of 6 years' imprisonment on the attempted murder, 6 years' imprisonment on the aggravated burglary to be served concurrently and 4 years' imprisonment cumulative on the armed robbery.

5 The appeal notice was filed on 29 July 2005. It was therefore just over two months out of time.

6 He accordingly seeks an extension of time. The applications fall to be determined under the procedural provisions which came into effect on 2 May 2005. I have given a brief outline of those in Re The State of Western Australia; Ex parte Osman [2005] WASCA 189. I need not repeat now what I said there.

7 It is sufficient to mention that leave to appeal is required for each ground in any appeal (s 27(1) of the Criminal Appeals Act 2004 (WA) ("the CA Act")). The Court of Appeal must not give leave to appeal on a ground unless satisfied that ground has a reasonable prospect of succeeding (s 27(2)).

8 The power of the Court of Appeal to grant or refuse leave may be exercised by a single Judge (r 43(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("the Rules")), who under that rule may also strike out any ground of appeal that does not have a reasonable prospect of succeeding and dismiss an appeal if none of the grounds has a reasonable prospect of succeeding. In that regard too, s 27(3) provides that unless the Court of Appeal gives leave to appeal on at least one ground in an appeal, the appeal is to be taken to have been dismissed.

9 The applicant's case was filed on 19 August 2005. Having read that, it seemed to me that there was a real question whether or not leave to appeal should be granted. I accordingly ordered pursuant to r 7(1)(d) and (e)(ii) that the application be listed for hearing ex parte.

10 As I have mentioned, under s 27(2) of the CA Act, leave to appeal is not to be granted unless the Court is satisfied the particular ground has a reasonable prospect of succeeding.

11 The section postulates a presumptive refusal of leave unless the Court is brought to that positive satisfaction. This necessarily requires more to be shown than that the ground is arguable. On a sentence appeal it also requires the Court or Judge deciding the application for leave to take into account the constraints which would apply to the appeal itself.

12 In that respect, two fundamental principles are that an appeal against sentence is an appeal against the exercise of a judicial discretion and is so subject to the well-known constraints articulated in House v The King [1936] HCA 40; (1936) 55 CLR 499; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 and R v Tait (1979) 24 ALR 473. Specific error of fact or law must be shown, alternatively the sentence must be shown to be so manifestly excessive or inappropriate as to show the exercise of the discretion must have miscarried in some otherwise unidentifiable way.

13 The second fundamental principle is related to the first. It is that an appeal court may not substitute its own opinion for that of the sentencing Judge merely because its members would have exercised their discretion in a different way (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672).

14 In the present case the grounds of appeal are as follows:

"(1) In sentencing the applicant the Learned Sentencing Judge, whilst stating the relevant facts, moved seemingly at random between recounting aggravating and mitigating factors, together with the facts of each offence, such that he fell into error when properly considering such for the purpose of sentence.

(2) Regarding the sentence imposed for the offence of armed robbery, it is not clear whether the starting point for the Learned Sentencing Judge was one of six years or one of five years.

(3) It is not clear from the Sentencing Transcript what sentence was intended to be imposed for the offence of armed robbery, namely whether the actual sentence imposed was one of four years or one of three years and four months.

(4) The sentence of 6 years for the offence of aggravated burglary was manifestly excessive in light of the fact a sentence of six years was also imposed for the substantial offence of attempted murder, that arose out of the same facts.

(5) The sentence of 6 years for the offence of attempted murder was manifestly excessive in light of the mitigating factors applicable to the Applicant and, further, based upon the authorities of Aldridge and Byfield."

15 At the hearing this morning Mr Watters informed me that ground 4 is abandoned.

16 The applicant submits that in the course of sentencing, when reciting the facts, the sentencing Judge appeared confused in the order with which he was required to deal with the matters before him and how he was to recount the facts of each offence. It is submitted further he appeared at different times to impose different penalties for the same offence.

17 It is said that on various occasions he "inexplicably" moved chronologically between elements of the attempted murder and aggravated burglary and, having done so, mentioned the fact, "There is very little in the materials by way of mitigation." However, his Honour then immediately went on to discuss not the materials concerning mitigation but the facts of the armed robbery charge.

18 It is submitted that in calculating the actual sentence for the applicant his Honour imposed a sentence of 6 years for the offence of attempted murder and then imposed a similar sentence of 6 years for the aggravated burglary and ordered that be served concurrently with the sentence for attempted murder, and that concerning the sentence for the offence of armed robbery, his Honour noted the offence was towards the lower end of the scale of armed robberies. His Honour indicated the offence "would have attracted a sentence of imprisonment of six years under the former legislation, which I would reduce to four years having regard to the transitional provisions. ..."

19 It is then submitted that in determining sentence for the armed robbery (which his Honour had already stated would be 4 years) he went on to say:

"The armed robbery offence was one at the lower end of the scale. In my opinion, taking into account your plea of guilty and all other relevant circumstances, it would have attracted a sentence of five years under the former legislation which should be reduced to three years and four months and taking into account the totality principle. That should be four years."

20 His Honour then went on to state that the sentences of 6 years for each of the aggravated burglary and attempted murder were to be served concurrently, so a total therefore of 6 years, but cumulatively upon the sentence for the armed robbery of 4 years, making a total sentence of 10 years. In so doing, it is said, by reference to the transcript, that his Honour stated:

"It follows that the total sentence is one of 10 years for all of the offences which will be deemed to have commenced on 2 February 2005."

21 However, having so determined, his Honour then stated:

"In my opinion, the total sentence of nine years and four months is one which is proportionate to the total criminality involved in these offences. The total of these sentences is 10 years."

22 The submission is that his Honour's reasoning and calculations appear to vary regarding the totality of the sentences to be imposed, and the "methodology and lack of clarity" shown by his Honour in reaching the sentences imposed is such that there is cause for concern regarding the accuracy of the sentences passed and whether or not they were the actual sentences his Honour intended to impose.

23 The grounds of appeal appear to have been prepared from the transcript by counsel who was not counsel during the sentencing proceedings - this is not a criticism; it is a situation which frequently arises - and the transcript is the official record of the proceedings. However, a transcript is not the same as printed reasons for judgment. Much often turns on not only what was said but how it was said. So too the paragraphing or other grammatical construct in a verbatim transcript often does not accurately reflect the grammatical construct intended by the speaker. Most of the time that will not present a difficulty - but it can.

24 Given the way in which grounds 1, 2 and 3 are expressed, I have listened to the actual audio-tape of what the sentencing Judge actually said.

25 I have also looked at the reports and other material which was before his Honour. That was not insubstantial. It included the witness depositions, the video record of interview and other papers comprising the hand-up brief of the prosecution, a four page pre-sentence report dated 27 April 2005, two-and-a-half pages of the applicant's criminal history and a 13-page report dated 26 April 2005 by Dr Srna, a consultant psychiatrist.

26 In addition, of course his Honour had heard oral submissions from the State prosecutor and a plea in mitigation from the applicant's then counsel. His Honour was presented with all that material on 2 May 2005 and as I have said, delivered his sentencing remarks the following morning.

27 It is not a fair description to say that his Honour "moved seemingly at random between recounting aggravating and mitigating factors together with the facts of each offence". Consideration of the circumstances and an examination of the material his Honour had before him reveals clearly enough that what his Honour did was first outline the facts from what had been said to him by counsel. He then referred to the depositions of individual witnesses and the content of the pre-sentence and psychiatric reports.

28 Each of those set out similar matters by way of background to the conclusions in the report. That perhaps creates an impression his Honour was being repetitious which, strictly speaking, he was, but it can be seen the repetition of these matters came from his Honour attempting to summarise the submissions and each report in turn.

29 This can be illustrated by a point particularly relied upon by counsel on this application. Counsel referred specifically to what is shown at t/s 17. His Honour had been dealing with the offences of attempted murder and aggravated burglary. He referred to the second video record of interview conducted with the police. At the bottom of t/s 16 his Honour said that in his opinion this was a particularly bad case of attempted murder, given the extreme violence which had both victims terrified for their lives by reason of the ferocity of the applicant's attack on the complainant's unit and the extent of the physical damage caused to the unit commencing with his manner of entry into the premises and the sustained ferocity of his attack which clearly put both complainants in fear of their lives.

30 His Honour said at the top of t/s 17 in a single paragraph:

"So far as the attempted murder is concerned you made it clear that your intention was to kill Mr Brandis. Fortunately for Ms Aspinall you were apparently unaware of her presence as she was hiding behind the curtain, but she was fully aware of your threats to kill Mr Brandis who was her boyfriend."

31 There is a full stop at the end of that paragraph. The next paragraph then begins as set out in the transcript:

"There is very little in the materials by way of mitigation. You were released on bail in respect of the attempted murder charge. In the meantime you were also charged with a subsequent offence of armed robbery committed at Midland on 5 February 2005 to which you have also pleaded guilty ..."

32 His Honour then went on to recount the facts of that. Counsel, as I have said, relies very much on the fact that the sentence "There is very little in the materials by way of mitigation" appears at the beginning of a paragraph in which his Honour then went on to talk about the facts of the armed robbery offence.

33 It seems to me that the proper way necessarily to read that transcript consistently with what his Honour was actually saying is to regard that sentence as actually having appeared at the end of the preceding paragraph and as part of it. It seems clear to me that what his Honour was saying was that there was very little in the materials by way of mitigation in respect of the attempted murder charge. Reading it that way seems to me to essentially remove the difficulty which counsel presents in relation to what there appears.

34 In short, it seems to me, in relation to that point at least, that it comes from the way in which the transcript has reproduced his Honour's comments rather than what his Honour was actually saying.

35 Given more time, no doubt his Honour could have been more selective and made his sentencing remarks in a more succinct and structured way than he did, but what he did say does not disclose error either of fact or law.

36 Counsel says his Honour did not place sufficient weight on mitigating factors and that is really what is intended by this ground, but that is not what the ground says. Counsel for the applicant is unable to identify any such error arising out of the ground as framed. That being so, ground 1 has no reasonable prospect of succeeding.

37 There can be no appeal against what is described as a "starting point" but in any event, that is an inapt term for use in this ground. What the ground really seeks to assert is that there is a lack of certainty about whether the sentence imposed by his Honour for the offence of armed robbery was one of 6 years or one of 5 years equivalent under the previous sentencing regime, translating either to a sentence of 4 years or one of 3 years 4 months under the new sentencing regime. That is the same point as is raised in ground 3.

38 These grounds also turn upon the point I have already made about transcript, at least to some extent. The question is not whether it is clear from the sentencing transcript what sentence was intended to be imposed for a particular offence but rather whether there is certainty about what sentence was actually imposed. That is to be determined not solely by a reading of the transcript (although in almost all cases that would be sufficient), but also from what was actually said and what the formal records of the Court show.

39 The audio-tape reveals that in respect of what was said at t/s 27, for example, which was this:

"As it happened, police were in a car outside the store and you immediately were apprehended and arrested. This offence, while serious, was toward the lower end of the scale of armed robberies and in my opinion would have attracted a sentence of imprisonment of six years under the former legislation, which I would reduce to four years having regard to the transitional provisions to which I have already referred. If each of these sentences were made cumulative upon one another, the total sentence would be 16 years which would be a crushing sentence."

40 It is apparent from the audio-tape that there was actually a pause before the words "six years" in that paragraph. Be that as it may, it is more than clear that his Honour was imposing a sentence of 4 years' imprisonment under the existing sentencing provisions which he correctly recognised equated to one of 6 years under the former legislation. That is apparent enough both from his reference to those facts and to his Honour's reference to the fact that if each of the sentences were then made cumulative, the total sentence would be 16 years which would be a crushing sentence. Counsel does not disagree with that view of what his Honour there says, but does submit that the problem arose a little later and appears at t/s 28.

41 I shall set out the last two paragraphs of his Honour's remarks on sentence:

"The armed robbery was a distinct and separate offence, albeit it was committed to facilitate your absconding from bail to the Eastern States to avoid the consequences of the earlier offences. The armed robbery offence was one at the lower end of the scale. In my opinion, taking into account your plea of guilty and all other relevant circumstances, it would have attracted a sentence of five years under the former legislation which should be reduced to three years and four months and taking into account the totality principle. That should be four years.

Given all the circumstances I consider that the sentence of four years for the armed robbery should be served cumulatively upon the other sentences which I have imposed. It follows that the total sentence is one of 10 years for all of the offences which will be deemed to have commenced on 2 February 2005. There will be an order for eligibility for parole in respect of each of the sentences imposed. In my opinion the total sentence of nine years and four months is one which is proportionate to the total criminality involved in these offences. The total of those sentences is 10 years."

42 It is obvious that there is, at least on the transcript, a confusion and conflict between the sentence of 4 years imposed in respect of the armed robbery and a sentence of 3 years 4 months in respect of the same offence. The question, as I have said though, is whether or not at the end of the day there is left any uncertainty as to what sentence was actually imposed.

43 The audio-tape reveals that after the words "it would have attracted a sentence of five years under the former legislation which should be reduced to three years and four months" there was a lengthy pause and his Honour then said "and taking into account the totality principle that should be four years". It appears from the audio-tape that he corrected himself at that point - which is of course not quite how it reads on the printed transcript, but it is clear enough from the tape.

44 His Honour then went on to say as I have set the passage out above, but when again he referred to the total sentence of nine years and four months being "one which is proportionate to the total criminality involved in these offences" there was again a long pause and then after the pause his Honour said, "The total of those sentences is 10 years."

45 That the sentence actually imposed for the armed robbery was 4 years, making an aggregate of 10 years' imprisonment, is confirmed by the warrant of commitment which must have been completed immediately thereafter and before the applicant could be removed from the court.

46 Having regard to these matters, and notwithstanding the apparent passing confusion about the 3 year 4 month sentence, there is in the end no possible uncertainty about the sentence actually imposed on the applicant. That being so, these grounds therefore have no reasonable prospect of succeeding.

47 This ground has been abandoned, but even so I note that grounds 4 and 5, even considered together, did not raise any issue about totality. Those two sentences were ordered to be served concurrently. There is no ground which claims the aggregate sentence of 10 years' imprisonment was manifestly excessive. In any event, now ground 4 having been abandoned, the sole question is whether or not ground 5 is one which has a reasonable prospect of succeeding.

48 Briefly stated, the circumstances of the attempted murder offence were as follows. The applicant and the complainant lived in the same block of townhouses in Midland. Over several months prior to the offence the applicant had ongoing concerns about the complainant's behaviour. According to what the applicant told police the complainant was "hassling" people living in the units.

49 About 11.40 pm on 30 July 2004 the applicant went to the complainant's unit armed with a knife, a claw hammer and a hollow length of metal pipe which he had taken from his own unit. He stood at the sliding door of the complainant's unit and shouted for the latter to come out, saying that he was going to kill him and repeating that. When there was no reply, the applicant used the hammer to smash the sliding glass door and then entered the premises. That is what constituted the aggravated burglary.

50 The complainant heard the applicant calling out to him and hid behind the fridge in his kitchen. The complainant's girlfriend was also in the unit at the time and she hid behind a curtain.

51 Once inside the unit the applicant held the knife above his head and called for the complainant to come out. He said, "I'm going to fucking kill you. Come out, you coward bastard." The complainant rushed at the applicant and wrestled with him in an attempt to take the knife from him. The applicant lunged at the complainant with the knife several times.

52 The complainant eventually grabbed the knife by the blade still trying to get it from the applicant and in the process, received minor cuts to his hands. He did, however, manage to get the knife from the applicant at which time the applicant tried to strike him with the metal rod. The complainant was able to wrestle the metal rod from him and he struck the applicant with it before complainant ran from the unit.

53 In the complainant's absence the applicant used the claw hammer to smash items in the unit. He smashed a television set and struck the kitchen table several times causing holes in the table top. He struck the wall beside the staircase, causing damage to the plaster. He returned to the unit several times and smashed items which were within it. That constituted an offence of criminal damage the subject of another count.

54 The applicant finally left the unit to search for the complainant, still with the intention of killing him. He went to a nearby phone box thinking that the complainant might be telephoning the police but he could not find the complainant so he returned to the complainant's unit.

55 The police were called and they found the applicant in the driveway of the units still holding the claw hammer in his hand. He was arrested and taken to the police station.

56 Subsequently, in the course of a video record of interview, the applicant told police that he probably would have killed the complainant if he had had the opportunity to do so, that he thrust the knife at the complainant intending to kill him and that he wanted to make sure he got him and intended to wound him badly. He said that his purpose was to stop the complainant hassling others in the unit and after he had lost the knife, he raised the hammer wanting to smash the complainant's skull in with it. He wanted to get rid of the complainant. The applicant told the police that if the complainant came for him in the future, he would finish him off. He said he was in a fit of rage and probably would have killed the complainant, given he was drunk and given the mood he was in.

57 In the plea in mitigation the applicant's counsel put strong submissions to his Honour based on the contents of the pre-sentence report and psychiatric reports. He said that the group of units was being used by a disability services mission to house a number of people suffering from disabilities of various kinds, including the complainant and the applicant. The psychiatric report indicated that the applicant does have what appears to be a behavioural disorder accompanied by depression, self-medication and mismanagement of drugs provided to him for that condition. On the day of the offence he had been drinking heavily and also taking illicit drugs as well as overdosing on prescription drugs.

58 The pre-sentence report indicated that he had significant health problems. They were recounted to his Honour and taken into account by him. The psychiatric report indicated the prognostication about treatment was rather gloomy. The applicant would be turning 52 years of age within about two weeks of the sentencing hearing. He had taken up, as his counsel put it, a criminal career at a very late stage in his life which perhaps testified to a mental illness and his excessive alcohol consumption. It is not necessary for present purposes for me to refer to the pre-sentence report or to the psychiatric report.

59 In relation to the attempted murder, his Honour said at t/s 25:

"... given the ferocity of your conduct and its obvious impact upon your terrified victims, it is necessary to impose significant terms of imprisonment for your offences, having regard to the level of violence involved and the need for punishment as well as the protection of the community."

60 He reiterated that attempted murder is a very serious offence. He said that the applicant's history of drug and alcohol abuse explained but did not justify or excuse his criminal conduct. He said that the recommendations made by Dr Srna should be implemented. He said that having regard to the offences there was no alternative but to sentence the applicant to appropriate terms of imprisonment, taking full account of such circumstances of mitigation as were relevant in his case.

61 He said it was imperative that the applicant undertake anger and violence management programs as well as psychiatric treatment, including anti-depressants both in prison and subsequently when released on parole. He reiterated that whilst taking into account the applicant's pleas of guilty, the attempted murder and aggravated burglary offences were both serious offences of their respective kinds. He said he had obtained some guidance in relation to the sentences from the decisions in Aldridge v The Queen, unreported; CCA SCt of WA; Library No 980206; 23 April 1998 and R v Byfield [2002] WASCA 260; (2002) 133 A Crim R 307. His Honour noted, "The circumstances in Aldridge bear some similarity to the present case", then proceeded to impose the sentences to which I have referred.

62 As I noted at the outset, when considering whether this ground, ground 5, has a reasonable prospect of success before a bench of three Judges, I must bear in mind that it would not be sufficient for the applicant to bring their Honours to a view that they would have imposed a shorter sentence than 6 years' imprisonment. He would have to satisfy them that that sentence was so excessive as to be outside the range of a proper exercise of the sentencing discretion.

63 In Aldridge the applicant had been sentenced to imprisonment for 10 years following a plea of guilty to three counts, the first being an attempt to unlawfully kill the mother of a woman with who he had previously been living but who had broken off the relationship. The sentence imposed for that offence of attempted murder was 9 years' imprisonment. The second offence was that he had entered the home of the mother without consent and with intent to commit an offence therein while armed with a dangerous weapon, namely, a knife. The sentence imposed for that offence of aggravated burglary was 7 years' imprisonment to be served concurrently. The third count was that the applicant unlawfully assaulted the girl with intent to do grievous bodily harm, for which he was sentenced to 3 years' imprisonment of which 2 years were directed to be served concurrently with the other sentences. Leave to appeal against sentence was refused.

64 The circumstances there as recounted by Wallwork J were that the applicant had gone to the mother's house to kill both her and her daughter. After he had thrust the knife at the mother, intending to kill her, the knife broke. He then grabbed the daughter, pulled her head down and punched her with his fists. He told the police that he had meant to hurt both women badly and that his sole intention after the knife broke was to harm them.

65 Whilst he was assaulting the daughter, her mother came to her assistance and he then assaulted the mother.

66 Comparisons with other cases are invariably invidious. Aldridge lays down no matter of principle. Simply seen as a case involving similar offences in not entirely dissimilar circumstances to some extent, if it does anything it tends to show the sentences imposed here were not out of an appropriate range.

67 In Byfield, in which again an application for leave to appeal against sentence was dismissed, the applicant had been convicted of attempted murder on his plea of guilty and was sentenced to 12 years' imprisonment. Their Honours made it clear that the sentence of 12 years was one which had in fact been reduced by the sentencing Judge from 16 years on account of the pleas of guilty. In that case the applicant was 19 years of age at the time of the offence.

68 Malcolm CJ in that case said, at [4], that he agreed with Wallwork J that there is no broad tariff of between 7 to 10 years for sentences in the case of attempted murder. His Honour then canvassed a large number of cases in which sentences for attempted murder had been imposed.

69 In his judgment, Wallwork J said, pertinently to the present appeal, at [41]:

"In my opinion, there is no broad tariff of 7 to 10 years immediate imprisonment for the crime of attempted murder. Carter's Australian Sentencing Digest (Law Book Co Ltd) reveals that sentences for the offence of attempted murder range from life imprisonment downwards. The appropriate sentence will always depend on the facts of the particular offence."

70 Steytler P agreed with both the Chief Justice and Wallwork J.

71 Once again, far from indicating error on the part of the sentencing Judge in this case, the decision in Byfield tends to the contrary.

72 His Honour here had regard to the mitigating circumstances but he considered they were outweighed by the gravity of the offences. I do not think it could reasonably be expected that a bench of three Judges of the Court of Appeal might conclude that was not open to his Honour. I am not persuaded this ground has a reasonable prospect of succeeding.

73 I would accordingly refuse leave to appeal in respect to grounds 1, 2, 3 and 5. As leave has been refused on each ground, the appeal is accordingly to be taken as dismissed.

• Ground 1
• Grounds 2 and 3
• Ground 4
• Ground 5