Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Grievous bodily harm and assault occasioning bodily harm - Whether sentences manifestly excessive - Significance of range of sentences commonly imposed - Rule against 'tinkering'

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Bowe v The State of Western Australia [2017] WASCA 166

Clarke v The State of Western Australia [No 2] [2013] WASCA 197

Cotterill v The State of Western Australia [2013] WASCA 52

Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [2017] HCA 41

Gurgone v The State of Western Australia [2016] WASCA 9

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

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

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

Morley v The Queen [2001] WASCA 49

R v De Simoni (1981) 147 CLR 383

R v Kilic [2016] HCA 48; (2016) 91 ALJR 131

R v Pham [2015] HCA 39; (2015) 256 CLR 550

The State of Western Australia v Ellement [2016] WASCA 1

The State of Western Australia v Ghilardi [2015] WASCA 61

The State of Western Australia v Smith [2016] WASCA 153

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

Trompler v The State of Western Australia [2008] WASCA 265

Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472

Winmar v The State of Western Australia [2016] WASCA 62

1 The appellants assaulted the victim as he attempted to recover his car from a carpark in Port Kennedy, between about 11.20 pm and 11.40 pm on 10 June 2014.

2 The appellant Marsandi was convicted of unlawfully doing grievous bodily harm to the victim, contrary to s 297(1) of the Criminal Code 1913 (WA). He was sentenced to 6 years 4 months' immediate imprisonment.

3 The appellants Allen and Gastarov were each convicted of unlawfully assaulting and doing bodily harm to the victim, contrary to s 317(1) of the Criminal Code. Allen was sentenced to 2 years 10 months' immediate imprisonment. Gastarov was sentenced to 3 years 6 months' immediate imprisonment.

4 The appellants now appeal against their sentences on the ground that they are manifestly excessive. The appeals must be allowed, and the following sentences of immediate imprisonment substituted:

5 The sentencing judge made the following findings as to the circumstances of the offending.[1]

6 At approximately 9.53 am on Tuesday, 10 June 2014, police contacted the victim to inform him that a silver Jeep Cherokee motor vehicle registered in his name had been located in a car park adjacent to the premises of a vehicle workshop at Port Kennedy. Police requested that the victim remove the vehicle.

7 At approximately 11.03 pm that day, the victim and his partner, who was 38 weeks pregnant, attended the Port Kennedy car park in a silver Holden Astra motor vehicle in company with a tow-truck driver. The victim used a baseball bat to smash the rear passenger window to gain access into his Jeep in order to enable it to be towed away. This caused the vehicle's alarm to sound.

8 The proprietor of the vehicle workshop was sleeping upstairs at his premises at the time and was woken by the sound of the car alarm. The proprietor had previously been engaged by Marsandi to make the Jeep roadworthy and have it re-registered. The proprietor telephoned either Allen or Marsandi to notify them of what was happening.

9 At approximately 11.21 pm, Marsandi and Allen arrived at the car park in a dark blue Chrysler sedan. Marsandi and the victim had a short conversation while Allen and the victim's partner stood by. The tow-truck driver left. During the course of their conversation Marsandi reached into the back of the Jeep and seized the victim's baseball bat. Without warning, Marsandi swung the bat at the right side of the victim's head.

10 The victim fell to the ground where Marsandi struck at him with the bat a further five or six times, although not all of those strikes made contact with the victim.[2] The victim subsequently got to his feet and ran out of the car park and onto the street. At this time Gastarov arrived at the street in a silver Holden Commodore motor vehicle. The victim at first raised his hands and slowed down as Gastarov's Commodore approached. When the Commodore came closer the victim started running again in the direction of a milk supply premises.

11 Marsandi approached Gastarov's Commodore and relinquished the bat. Gastarov then pursued the victim in his Commodore while Allen ran after him on foot for the purpose of enabling Marsandi to continue his assault on the victim.

12 Gastarov and Allen caught up with the victim in the street. The victim then started jogging back towards the car park. Allen chased behind the victim on foot and at one point aimed a high kick at the victim from behind.

13 Back in the car park, Marsandi had got back into the driver's seat of the Chrysler. Upon the victim returning to the car park, Marsandi exited the vehicle, rushed at the victim and pushed him up against a wire boundary fence. Shortly afterwards, Gastarov arrived back at the car park on foot and rushed towards the victim with a raised baseball bat.

14 While Marsandi pressed the victim up against the fence, Gastarov punched the victim with his left (non-dominant) hand three times and kicked the victim to the leg area twice.[3] Gastarov then pulled the victim to the ground where Marsandi kicked him and stomped on him several times. As the victim lay on the ground, Allen knelt beside him and took a photo using his mobile phone.

15 At 11.38 pm, the offenders allowed the victim and his partner to leave in the Holden Astra. The assault was captured by CCTV cameras installed at the premises of vehicle workshop. At some point prior to the hard disc containing the footage being seized by police, all of the footage prior to the departure of the Holden Astra was manually deleted. However, it was subsequently retrieved and reconstructed with the assistance of experts from the New South Wales Police.

16 The victim drove to a service station where police and ambulance were called. The victim was taken to Rockingham General Hospital. Due to the severity of his injuries, he was transferred to Royal Perth Hospital.

17 After the victim's departure from the carpark, Marsandi commenced hosing down the Jeep and the area of the car park where the assault took place with soap and water, before handing the hose over to Allen to continue doing so. At 11.40 pm, Marsandi and Gastarov left in Gastarov's Commodore, before returning at 12.13 am. At 12.19 am, Marsandi and Gastarov went across the road to the premises of a panel-beating business. The operators of the panel-beating business were awake at the time of these events, but did not answer the door.

18 At 12.24 am, Gastarov placed the baseball bat into the boot of his Holden Commodore and left. Marsandi and Allen went inside the workshop and changed their clothes. Each of them was located upstairs at the workshop by police at approximately 7.30 am on 12 June 2014.[4] Marsandi and Allen were arrested and conveyed to the Rockingham Police Station before being subsequently released.

19 Later the same day, Gastarov returned to the panel-beating premises to ask that its operators hand over the footage recorded by their CCTV cameras. He was told that police had already seized it.

20 On 24 July 2014, police arrested and charged all three appellants with unlawfully doing grievous bodily harm to the victim.

21 In the course of the initial assault by Marsandi, the victim sustained a fractured mandible (lower jawbone), a fractured maxillary antrum (paranasal sinus), and dislocation of the joint between the mandible and the maxilla (upper jaw). These injuries were life-threatening because of the risk the victim may have asphyxiated. If left untreated, the fractures would also have caused a permanent injury to the victim's health by preventing him from eating properly. The victim also sustained a depressed occipital bone (located in the lower back of the skull) which carried the risk of a concomitant brain injury. The State properly contended that both the jaw injuries and skull injury constituted grievous bodily harm.

22 The victim also sustained the following injuries in the course of being assaulted by the appellants, which were not said to constitute grievous bodily harm:

1. a depressed zygoma bone (cheek bone);
2. an orbital wall (eye socket) fracture;
3. a fifth right metacarpal (hand) fracture;
4. grazes on his hands and legs;
5. tenderness in the cervical region of his spine at C7 to T1; and
6. a fractured ulnar styloid on his left wrist.

23 The victim was hospitalised and required surgery for a number of injuries. A metal plate was placed in his head. At the time of trial, he was still complaining of ongoing headaches and problems with his vision.[5]

24 The victim was a 27-year-old male, 179 cm in height with a slim build. Marsandi was a 28-year-old male, 181 cm in height with a solid build. Allen was a 32-year-old male, 178 cm in height with a slim build. Gastarov was a 38-year-old male, 185 cm in height with a solid build.

25 The sentencing judge did not accept Marsandi's contention that he had an honest claim of right to the Jeep. Marsandi's offence was committed in the context of trying to prevent the registered owner from recovering his vehicle. The motivation of Allen and Gastarov was less clear apart from an apparent loyalty to Marsandi.[6]

26 The sentencing judge also rejected Marsandi's contention that he reacted in the belief that the victim was reaching for or had produced a gun.[7]

27 Marsandi was 31 years old at the time of sentencing. He was raised in a close and supportive family. Marsandi had been in a de facto relationship for about 4 years, which produced three young children. He was a good and loving father and husband, and was loved and held in high regard by his friends and family.[8]

28 Marsandi did reasonably well at school completing year 11 and going on to complete an apprenticeship as a boilermaker. He had a good trade and history of work and accomplishment in that trade.[9]

29 Marsandi had a relatively limited record of prior convictions in Western Australia, consisting for the most part of Road Traffic Act offences and a couple of convictions for disorderly behaviour in public. He had never previously been sentenced to a term of imprisonment. However, after committing this offence, he had been convicted of an offence of assault occasioning bodily harm committed on 17 April 2014 in Liverpool, New South Wales. The victim in that case was a woman who Marsandi confronted about her alleged interference with a relationship between Gastarov and Gastarov's partner. Marsandi had demanded that the woman show him her mobile phone so that he could see what messages or calls appeared on it. When the woman refused to hand over her mobile phone, Marsandi put his hands around the woman's neck and strangled her with some force for 9 - 10 seconds, before taking her phone when she dropped to the floor.[10]

30 Marsandi produced a number of positive references from a friend and family members. In relation to those references, the sentencing judge observed:[11]

I've no doubt of the sincerity of each of the people who provided references. I have to assume that they could not have known what you did to the woman in the pub in New South Wales, and that they had not at that time seen the way that you repeatedly bludgeoned the victim here with a baseball bat when he wanted to recover his car. Somehow you've managed to conceal from those people just what, in fact, you are capable of.

31 Allen was 35 years old at the time of sentencing. Allen's parents died some years ago. He was single with no dependants, although an ex-partner was still supportive of him. Although Allen had abused drugs in the past, he had managed to 'pull back from that and organise' himself enough to start his own trucking business as an owner-operator. Although the business operated successfully for a while, he lost his licence to drive as a consequence of his offending and unpaid fines (amounting to $12,000 at the date of sentence).[12]

32 Allen's only physical health problem was a limp and postural problems resulting in headaches. These symptoms were the legacy of an injured leg. Allen suffered from depression, to a large degree because of his involvement with the criminal justice system and his unwillingness to use medication offered to treat the condition.[13]

33 Allen had a substantial record of prior offending, including three prior convictions of assault occasioning bodily harm. He had been convicted of a range of other kinds of offences, including reckless driving while escaping police in 2013 for which he was sentenced to 7 months' imprisonment. Allen was released on administrative parole, which he breached by associating with an outlaw motorcycle gang member on the day of his release. Allen served the full term, and was out of prison for only about a month before committing the present offence.[14]

34 Allen produced two references from a former partner and friend, but the sentencing judge found the referee's assessment of Allen's character difficult to reconcile with his criminal record.[15]

35 Gastarov was 41 years old at the date of sentence. He was born in Australia but raised in the United States after his parents separated and his mother moved there. He completed the equivalent of year 12 in the United States and began a consistent history of work while living there. Gastarov met his former wife in the United States and they had two children. Their relationship did not survive the family's move back to Australia. In 2006, Gastarov started a relationship with his current partner, with whom he has a child born in 2007.[16]

36 Prior to the offending, Gastarov ran a tattooing business which got into financial difficulty.[17]

37 Between 2002 and 2008, Gastarov's criminal record consists almost entirely of Road Traffic Act offences. However, in 2008 Gastarov was sentenced to 12 months' imprisonment for deprivation of liberty. He had also been convicted of assault occasioning bodily harm in September 2013, for which he received a $1,000 fine.[18]

38 It may be noted that, at the sentencing hearing, it was uncontroversial that each of the appellants was associated with an organisation referred to as the Rebels outlaw motorcycle gang. The sentencing judge did not treat those associations as having any particular significance in his sentencing remarks.

Sentencing judge's approach Aggravating factors common to all appellants

39 The sentencing judge identified the following aggravating factors of the appellants' offending.[19]

40 First, the offending occurred in company. The three appellants took part to a greater or lesser degree in the assault against one man. In identifying this aggravating factor, the sentencing judge acknowledged that Gastarov came to the scene slightly later after the blows had been struck with the baseball bat. His Honour also accepted that Allen did not himself strike the victim, and that he was unsuccessful in the one kick that he aimed at the victim.

41 Secondly, the offences represented a sustained attack against the victim. He was very severely beaten by Marsandi while Allen looked on, and then after trying to escape he was again beaten and kicked by Marsandi and Gastarov while Allen looked on. The fact that the offences were carried out in company meant that the victim, who was at this stage only accompanied by his heavily pregnant partner, was particularly vulnerable. By the time the second beating began, the victim was injured and cowed. That would have been obvious to all of the appellants, even if Gastarov did not know the exact extent of the injuries already inflicted.

42 Thirdly, the injuries that the victim suffered represent serious examples of the respective offences that the appellants each committed. The injuries attributable to the bodily harm offences in particular were at the high end of the range for bodily harm. In the case of Marsandi, the nature of the injuries is serious because of the many blows that were inflicted with a baseball bat, and the use of that weapon was an aggravating feature of the offence. Gastarov's offence was aggravated by his carrying the baseball bat while assaulting the victim, even though the bat was not used to strike a blow.

43 Fourthly, the assaults were carried out in a brazen manner. The appellants were not stopped by the fact that others (the tow-truck driver, the proprietor of the vehicle workshop and the victim's partner) would know what they had done or could connect them to it. The appellants carried out the offending in the apparent belief that they could do it and get away with it, and that no one, including the victim, would dare to stand up against them.

44 The sentencing judge concluded that it was open to have regard to the appellants' post-offence conduct, such as eliminating possible evidence of the offence, in assessing the extent of claimed remorse. However, the sentencing judge expressed the view that it would not be correct to rely on that post-offence conduct as a basis for assessing the degree of objective criminality of the appellants' respective offending.

45 The sentencing judge characterised each appellant's offence as objectively very serious, and at the high end of objective criminality for offences of its kind.[20]

46 The appellants were all originally charged with one count of doing grievous bodily harm. The matter went to trial, at which the victim gave evidence. The trial was aborted when Marsandi was shot outside his home. The appellants offered to plead guilty to the offences of which they were convicted about a week prior to the date on which the second trial was listed. Those offers were promptly accepted by the State.

47 In the case of each appellant, the sentencing judge reduced the head sentences which he would otherwise have imposed by 10 %, under s 9AA of the Sentencing Act 1995 (WA).[21]

Immediate imprisonment the only appropriate sentencing option

48 Marsandi and Gastarov both accepted that the nature of the offending was such that only immediate terms of imprisonment were appropriate. In the case of each appellant, the sentencing judge concluded that the seriousness of the offences was such that a term of immediate imprisonment was the only appropriate sentencing option. His Honour also concluded that protection of the community was properly a factor to take into account in fixing the appellants' sentences.[22]

49 Having referred to the circumstances of the offence and Marsandi's antecedents, the sentencing judge observed:[23]

the factors that stand out, particularly in fixing the degree of objective criminality for your offending, is not so much any injuries inflicted, which were serious enough, but the manner in which they were inflicted and the circumstances in which that occurred.

...

What distinguishes your offending is its real pointlessness, its coldness, its ruthlessness, and the apparent certainty on your part that you could, in fact, do what you wanted without fear of consequences. Those are the things that elevate the objective criminality of your offending. That conduct considered against the background [of] the assault against the woman [at] the hotel in Liverpool combine to suggest that you are someone who presents as a danger to the community.

While I give you credit for your history of work, and your criminal record is not as bad as many offenders who appear before this court, it still can't be said that you have good antecedents.

51 The sentencing judge did not accept that Marsandi was genuinely remorseful.[25]

52 The sentencing judge regarded Marsandi as the instigator and leader of the offending. His conduct was a reaction to the victim trying to recover the vehicle registered in his name. The sentencing judge said:[26]

The injuries that you, Mr Marsandi, inflicted with such considerable brutality were much more serious than those attributable to you and Mr Gastarov together, as serious as those later injuries were.

53 His Honour sentenced Marsandi to 6 years 4 months' immediate imprisonment.[27] The sentence was backdated to 14 December 2016 to take account of time spent in custody, and Marsandi was made eligible for parole.[28]

54 The sentencing judge regarded Allen's plea of guilty and work history as mitigating factors. However, given Allen's history of convictions it could not be said that he had good antecedents. He accepted that Allen had 'been experiencing a degree of remorse', before observing that:[29]

The depth of that as opposed to your fear of the consequences of your offending, remorse for what is to happen to you, is difficult to gauge.

I, of course, have seen the CCTV and the conduct of each of you after the assaults which has much more of a 'job well done' character than any suggestion of any misgivings. The covering up of evidence is of course, more consistent with fear of consequences that genuine remorse.

55 The sentencing judge also observed that Allen tried but failed to land a kick on the victim, and that by his presence Allen intended to aid the assault on the victim. He was present from beginning to end.[30] The sentencing judge said:[31]

This was very serious offending committed in company. I acknowledge that you did not yourself land a blow, but you tried to after you had seen this victim quite savagely beaten by Mr Marsandi with a baseball bat. You provided aid for the offending, a show of support no doubt intended to prevent resistance.

You didn't intervene to stop [the victim] from being injured or further injured. To the contrary, when he tried to escape, you tried to help recapture him. There is no sensible explanation as to why you would be involved in such offending, no explanation except loyalty to Mr Marsandi.

56 His Honour sentenced Allen to 2 years 10 months' immediate imprisonment. The sentence was backdated to 12 January 2017 to take account of time spent in custody. Allen was made eligible for parole.[32]

57 As to Gastarov's offending, the sentencing judge observed:[33]

Mr Gastarov, you physically took part in the assault on the victim, sharing principal responsibility for injuries that are characterised as bodily harm. Of course, you turned up after the assault on [the victim] - the first assault had already occurred. When regard is had to the fact that a black eye or a scrape or a sprain can amount to bodily harm, it can be seen that the injuries for which you are directly - or principally responsible are a very serious example of this kind of harm.

58 His Honour sentenced Gastarov to 3 years 6 months' immediate imprisonment. The sentence was backdated to 12 January 2017 to take account of time spent in custody. Gastarov was made eligible for parole.[34]

59 Each appellant appeals against his sentence on the sole ground that the sentencing judge erred in his sentencing discretion by imposing a sentence which in all the circumstances was manifestly excessive. The applications for leave to appeal on that ground have been referred to the hearing of the appeal.

60 The maximum penalty for the charged offence (there being no circumstances of aggravation)[35] was 10 years' imprisonment.[36]

61 This court has considered the range of sentences imposed for the offence of unlawfully doing grievous bodily harm in a number of cases.[37] There is no single tariff for the crime of unlawfully doing grievous bodily harm contrary to s 297(1) of the Criminal Code. However, as a matter of fact, the ordinary disposition is a sentence of immediate imprisonment.[38] It has been noted on a number of occasions that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, with relatively serious examples of that offence attracting sentences of 3 to 5 years.[39] A sentence in the range of 3 to 5 years will commonly be imposed in cases involving the use of weapons.[40] The sentence imposed on Marsandi obviously stands outside that range of 3 to 5 years. That difference was emphasised by senior counsel for Marsandi.

62 Of course, recognition that a sentence stands outside the range of sentences commonly imposed for the offence in question does not establish that it is manifestly excessive. The problems with attempting to identify an available 'range' of sentences were averted to in Barbaro v The Queen.[41] There the plurality observed that manifest excess or inadequacy can be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. The plurality also noted that it is, then, common to speak of a sentence as falling outside the available range of sentences.[42] Their Honours went on to caution that:[43]

the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. (original emphasis)

63 Further, the High Court has emphasised that the range of sentences which have historically been imposed do not establish the outer bounds of the permissible discretion.[44] As the court observed in Kilic, past cases:[45]

may provide a relevant 'yardstick' by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'. (citations omitted)

64 That is not to deny that customary sentencing practice is an important consideration in assessing a submission that a sentence is manifestly excessive or inadequate. It may well be that the difference between the sentence in question, on the one hand, and sentences passed in comparable cases forming part of an established sentencing pattern, on the other hand, is so large as to lead to the conclusion that there must have been some misapplication of principle, even though where and how is not apparent from the sentencing reasons.[46] However, as Gageler and Gordon JJ observed in Dalgliesh:[47]

Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.

65 Rather, as French CJ, Keane and Nettle JJ observed in Pham, the consistency in sentencing that is sought by this court in exercising its appellate jurisdiction is consistency in the application of relevant legal principles.[48] As their Honours noted:[49]

Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

Whether the result of the sentencing exercise drives the appellate court to the conclusion that there has been some misapplication of principle will depend on whether the result can be characterised as unreasonable or plainly unjust.[50]

66 The rule against appellate courts 'tinkering' with sentences is a corollary of the need for the sentence imposed to be unreasonable or plainly unjust before error of principle can be inferred from the result. It may also be regarded as a corollary of recognising that 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice' and that there is no single unique correct sentence.[51] The absence of a substantial difference between the sentence which the appellate court regards as appropriate and the sentence imposed at first instance is inconsistent with a characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles).

67 In an often cited passage in Trompler v The State of Western Australia,[52] Wheeler JA identified three matters which are generally of significance in assessing criminality involved in an offence of doing grievous bodily harm:

1. The nature of the resulting harm (which may range from a permanent injury which the victim is able to accommodate, to a severe and life-threatening injury resulting in serious permanent disability).
2. The nature of the act which causes the injury (which may involve deliberate and repeated violence or only a single act, and which may or may not involve the use of weapons).
3. The background and circumstances of the offence (whether a deliberate attack carried out in order to obtain some personal advantage, or for revenge, as opposed to senseless violence or aggression, and whether the offender's act is a response to provocative or threatening conduct).

68 In the present case, the injury which the victim suffered was a serious fracture to the jaw and a depressed bone in his lower back skull. The ongoing effects of the injuries are not known, beyond the fact that when he gave evidence at the aborted trial the victim complained of ongoing headaches and problems with his vision. The beating which the victim suffered was severe, as illustrated by the photographs taken at the time, and resulted in a metal plate being placed in his head. While the injuries were moderately severe examples of grievous bodily harm, they were not established to have resulted in serious permanent disability.

69 The victim's injuries resulted from a sustained deliberate series of violent acts committed by Marsandi, and then Marsandi and Gastarov. It may be inferred that at least most of the injuries constituting grievous bodily harm were caused by Marsandi's initial use of a baseball bat to repeatedly and forcefully strike the victim's head. The infliction of later injuries was an aggravating feature of Marsandi's offence, in that they involved the continued violent assault of a man who had just sustained significant head injuries from the use of the baseball bat. The sustained nature of the assault, and the fact that a weapon was used in a manner which was objectively likely to cause serious injury, were significant aggravating features of the offence.

70 The victim did not offer any provocation for the assault. He was simply trying to recover the vehicle registered in his name to which, on the sentencing judge's unchallenged findings, Marsandi had no entitlement. The attack was deliberate and was aggravated by the fact that it was committed in company in a location where the victim was particularly vulnerable, and in the presence of the victim's heavily pregnant partner.

71 In an unchallenged finding of fact, the sentencing judge described Marsandi's offending as 'brazen'. By that, his Honour meant that, despite the fact that the owner of the workshop, the tow truck driver and the victim's pregnant partner could identify Marsandi:[53]

None of that, the fact that others would know what you had done or could connect you to it, stopped you or even seemingly slowed you down. This offending was carried out by you in the apparent belief that you could do it and get away with it, and that no one, including the victim, would dare to stand up against you.

Later, the sentencing judge referred to the 'apparent certainty' on Marsandi's part that he could, in fact, do what he wanted without fear of consequences.[54]

72 The conclusion that the appellant felt he could seriously assault others with impunity elevated the significance of personal deterrence and community protection as sentencing considerations. That conclusion also reduced the mitigating effect of the absence of relevant convictions prior to the commission of the current offence. It is capable of explaining the imposition of a sentence greater than the sentences customarily imposed for serious examples of causing grievous bodily harm. However, it does not explain the extent of the disparity in this case.

73 In our view, the sentence imposed by the sentencing judge was not commensurate with the seriousness of Marsandi's offence, [55] having regard to the relevant sentencing principles and the circumstances of the offence and the offender. The extent of the disparity between the sentence imposed on Marsandi and the customary sentencing standards for this offence is significant, even allowing for the distinguishing features of Marsandi's offending noted above. The extent of that disparity is apparent from three previous decisions which illustrate the established sentencing pattern:

1. In Bowe, the four offenders were convicted after trial of assaulting the victim in company with baseball bats which caused serious head injuries that resulted in some brain damage, and were sentenced to between 3 and 4 years' immediate imprisonment.
2. In Winmar, the two offenders participated with others in a sustained assault on the victim which firstly involved throwing an iron bar causing a significant open leg wound and comminuted fracture of the lower left fibula, and secondly striking the victim with baseball bats and similar implements causing a laceration of the victim's left middle finger. A total effective sentence of 4 years 6 months' immediate imprisonment was imposed after trial.
3. In Gurgone, the offender attacked the victim with a large hunting knife and a machete causing serious injuries, including a wound to the left shoulder area of the victim's back which penetrated the chest cavity resulting in a collapsed lung. He was convicted after trial and sentenced to 4 years 3 months' immediate imprisonment.

74 These illustrations all involved serious and deliberate assaults with weapons. Bowe and Winmar involved assaults in company resulting in serious injury. Significantly lesser sentences than 6 years 4 months' imprisonment were imposed in those cases where none of the offenders pleaded guilty.

75 In the present case, Marsandi pleaded guilty (albeit at a late stage), the injuries to the victim were not shown to have resulted in serious permanent disability, Marsandi had no previous convictions for offences of violence and he had not previously served a custodial sentence.

76 Having regard to the circumstances of the offence and the offender, and all relevant sentencing principles, the difference between sentences imposed in comparable cases and that imposed on Marsandi is so large as to compel the conclusion that there must have been some misapplication of principle by the sentencing judge. It was not open to the sentencing judge to view the sentence which he imposed on Marsandi as commensurate with the seriousness of the offence committed by Marsandi, having regard to all relevant circumstances and all relevant sentencing principles. In all the circumstances, while Marsandi's offence is a serious example of the offence of unlawfully doing grievous bodily harm, a sentence of 6 years 4 months' imprisonment is unreasonable or plainly unjust.

77 Inferred error having been established, it is appropriate for this court (which has the necessary materials) to resentence Marsandi. In our view, the appropriate sentence is a sentence of 5 years' immediate imprisonment (which incorporates a reduction for the mitigating factors found by the sentencing judge including a 10% reduction under s 9AA of the Sentencing Act).

78 For these reasons, we would grant leave to appeal, allow Marsandi's appeal and substitute a sentence of 5 years' immediate imprisonment. He should remain eligible for parole. The sentence should be backdated to 14 December 2016 to take account of time spent in custody.

79 The maximum penalty for an assault occasioning bodily harm in the absence of any circumstances of aggravation is 5 years' imprisonment.[56] The maximum penalty for the offence of which Allen was convicted is half the maximum penalty for unlawfully doing grievous bodily harm.

80 Counsel for the State submitted that Allen was criminally responsible for the jaw and skull injuries suffered by the victim. We do not accept that submission. Allen was convicted only of the lesser offence of assault occasioning bodily harm. He was not convicted of the more serious offence of unlawfully doing grievous bodily harm. To take account of injuries which have the character of grievous bodily harm in sentencing Allen would be to in effect punish him for an offence of which he has not been convicted. That is impermissible.[57]

81 It is also necessary to consider the factual basis on which Allen was liable for assault occasioning bodily harm but not grievous bodily harm. Allen did not himself actually inflict any of the injuries which the victim sustained. His criminal responsibility is to be assessed on the basis that, by his presence and support for Marsandi, and then Marsandi and Gastarov, he aided Marsandi, and then Marsandi and Gastarov, in assaulting the victim without intending that injuries constituting grievous bodily harm would result.

82 That Allen did not actually inflict any injury, and did not instigate the violence initially directed towards the victim by Marsandi, also reduces the seriousness of his offending. It was not alleged or established that Allen planned to aid Marsandi in assaulting the victim, or intended to do so prior to the commencement of Marsandi's assault using the baseball bat.

83 Allen's previous convictions, including for assault occasioning bodily harm, meant that the mitigating factor of prior good character was absent, but did not constitute an aggravating factor. It may also be noted that Allen's last conviction for an offence involving violence was for an offence committed in October 2003. He was found to have acted out of misguided loyalty to Marsandi.

84 In Clarke v The State of Western Australia,[58] Mazza JA, after referring to a number of cases dealing with the offence of assault occasioning bodily harm, observed:

In Holden [v The State of Western Australia [2009] WASCA 50], Wheeler JA, while acknowledging that it was difficult to discern a range because of the great variation of the circumstances of the cases, noted that sentences of between 6 months' suspended imprisonment to 2 years' immediate imprisonment have been imposed in cases where there had been a plea of guilty. Self-evidently, the sentence imposed by the learned sentencing judge in the present case falls within that range. However, the fact that a sentence falls within the range of sentences customarily imposed does not necessarily lead to the conclusion that the sentence was not manifestly excessive. This is because, as I said earlier, each case must be decided on its own facts.

85 The sentence imposed on Allen may have been appropriate had he been convicted of aiding the unlawful doing of grievous bodily harm. However, having regard to the customary sentencing practice, in all the circumstances of this case, including the fact that Allen did not himself inflict any injury, his plea of guilty and the nature of the injuries for which Allen is criminally responsible, a sentence of 2 years 10 months' imprisonment was unreasonable or plainly unjust. In those circumstances a sentence of over half the maximum available penalty could not be justified as commensurate with the seriousness of Allen's offence.

86 In our view, leave to appeal should be granted, Allen's appeal should be allowed, the sentence set aside and a sentence of 20 months' immediate imprisonment substituted (which incorporates a reduction for the mitigating factors found by the sentencing judge including a 10% reduction under s 9AA of the Sentencing Act). He should remain eligible for parole. The sentence should be backdated to 12 January 2017 to take account of time spent in custody.

87 Gastarov was not present when the injuries constituting grievous bodily harm were inflicted. That explains the basis on which he was not criminally responsible for those injuries. His culpability is reduced by the fact that he was not present for the whole of the sustained assault on the victim, although it is aggravated by the fact that he himself assaulted the victim who Gastarov must gave appreciated was already seriously injured. His past antecedents were better than Allen's. Otherwise the above discussion relating to Allen also applies to Gastarov.

88 Having regard to all the circumstances of Gastarov's offending and his personal circumstances, and all relevant sentencing principles, we are also satisfied that his sentence of 3 years 6 months' imprisonment was unreasonable or plainly unjust. In our view, leave to appeal should be granted, Gastarov's appeal should be allowed, the sentence set aside and a sentence of 2 years 4 months' immediate imprisonment (which incorporates a reduction for the mitigating factors found by the sentencing judge including a 10% reduction under s 9AA of the Sentencing Act) substituted. He should remain eligible for parole, and the sentence backdated to 12 January 2017 to take account of time spent in custody.

89 We would make the following orders in the appeals:

1. Leave to appeal is granted on the sole ground of appeal.
2. The appeal is allowed.
3. The sentence imposed on the appellant by the District Court of Western Australia in Perth indictment 1124 of 2015 is set aside, and there is substituted a sentence of 20 months' immediate imprisonment.
4. The sentence imposed by order 3 of these orders is taken to have begun on 12 January 2017.
5. The appellant is eligible for parole.

1. Leave to appeal is granted on the sole ground of appeal.
2. The appeal is allowed.
3. The sentence imposed on the appellant by the District Court of Western Australia in Perth indictment 1124 of 2015 is set aside, and there is substituted a sentence of 2 years 4 months' immediate imprisonment.
4. The sentence imposed by order 3 of these orders is taken to have begun on 12 January 2017.
5. The appellant is eligible for parole.

1. Leave to appeal is granted on the sole ground of appeal.
2. The appeal is allowed.
3. The sentence imposed on the appellant by the District Court of Western Australia in Perth indictment 1124 of 2015 is set aside, and there is substituted a sentence of 5 years' immediate imprisonment.
4. The sentence imposed by order 3 of these orders is taken to have begun on 14 December 2016.
5. The appellant is eligible for parole.

[1] Except where otherwise indicated, these facts were adopted from the prosecutor's statement of the facts: see ts 909 - 911, 1012.

[4] It appears that this date may have been in error, as the statement of material facts refers to the arrest occurring at 7.30 am on 11 July 2014. However, nothing turns on this difference in these appeals.

[28] ts 1026. We note that the sentencing judge referred to both 14 and 15 December 2016 at this point in the transcript, and the certificate of final outcome of the charge indicates the start date of the sentence was 14 January 2017. It appears from the sentencing judge's exchange with the prosecutor at ts 1011 that 14 December 2016 was the intended start date for Marsandi's sentence.

[35] See s 221 and s 297(3) of the Criminal Code, which provide for a maximum penalty of 14 years' imprisonment in certain circumstances of aggravation.

[36] Section 297(1) of the Criminal Code.

[37] See the discussion in The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 [35] - [39], adopted in The State of Western Australia v Smith [2016] WASCA 153 [38].

[38] The State of Western Australia v Ellement [2016] WASCA 1 [43].

[39] See, for example, Winmar v The State of Western Australia [2016] WASCA 62 [66] - [69];Gurgone v The State of Western Australia [2016] WASCA 9 [38] and cases there cited.

[40] For recent examples, see Bowe v The State of Western Australia [2017] WASCA 166; Winmar; Gurgone; Cotterill v The State of Western Australia [2013] WASCA 52; Taylor.

[41] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.

[44] Barbaro [41]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [47]; Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [2017] HCA 41 [81], [83].

[45] R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [22].

[46] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [67].

[48] Pham [28] (point (2), citing Hili [49]). To similar effect, see Dalgliesh [49].

[50] Kilic [36]; Pham [56]; House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[51] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15], as recognised by the Court of Criminal Appeal in Morley v The Queen [2001] WASCA 49 [8].

[52] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11]. See also The State of Western Australia v Ghilardi [2015] WASCA 61 [50] - [52] and cases there cited (where a sentence of 4 years 3 months' imprisonment was imposed in a State appeal where very serious head injuries resulted from a fist fight instigated by the offender).

[55] Section 6(1) of the Sentencing Act.

[56] Section 317(1) of the Criminal Code.

[57] R v De Simoni (1981) 147 CLR 383, 389, 392 referred to in Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472 [72], [162].

[58] Clarke v The State of Western Australia [No 2] [2013] WASCA 197 [29].