Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Unlawfully doing grievous bodily harm - Whether total effective sentence infringed the first limb of the totality principle - Whether sentence was manifestly excessive

Allen v The State of Western Australia [2017] WASCA 203

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

Hansen v The State of Western Australia [2014] WASCA 229

Holden v The State of Western Australia [2011] WASCA 238

Hunter-Aragu v The State of Western Australia [2015] WASCA 80

Kere Kere v The State of Western Australia [2016] WASCA 189

Peake v The State of Western Australia [2015] WASCA 239

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 Mackey [2017] WASCA 204

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

1 JUDGMENT OF THE COURT: The appellant was charged on indictment in the District Court with three offences. Count 1 alleged that between 4 April 2015 and 8 April 2015 he received a number of items the property of Katherine Rachel King which had then lately been stolen, then well knowing the same to have been so stolen, contrary to s 414 of the Criminal Code (WA). Counts 2 and 3 were alleged to have occurred on 8 May 2015 at Kalgoorlie, in the one incident. Count 2 alleged that the appellant unlawfully did grievous bodily harm to Robert Daniel Bosworth, contrary to s 297(1) of the Code and count 3 alleged that the appellant unlawfully wounded Samuel Treleaven, contrary to s 301(1) of the Code. The maximum penalty for count 1 is 14 years' imprisonment; for count 2, 10 years' imprisonment and for count 3, 5 years' imprisonment.

2 On 14 April 2016, the appellant pleaded guilty to count 1. On 19 May 2017, he was convicted after trial of counts 2 and 3.

3 On 20 July 2017, the appellant was sentenced by Stewart DCJ as follows:

Count 1 - 9 months' immediate imprisonment (reduced from 16 months to reflect totality)

Count 2 - 5 years' immediate imprisonment

Count 3 - 12 months' immediate imprisonment

4 Her Honour ordered that the sentences on counts 1 and 2 be served cumulatively and that the sentence on count 3 be served concurrently with the sentence on count 2. Thus, the total effective sentence was 5 years 9 months' immediate imprisonment. Her Honour ordered that the appellant be eligible for parole and she backdated the sentence to commence on 8 January 2016.[1]

5 The appellant seeks leave to appeal on two grounds. Ground 1 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges that the sentence on count 2 was manifestly excessive.

6 For the following reasons, we are of the opinion that neither ground has a reasonable prospect of succeeding. Accordingly, leave to appeal should be refused.

7 The facts of the offending are not in dispute. They may be summarised in this way.

8 Between 4 April 2015 and 6 April 2015, a burglary occurred at a house situated in Rourke Cove, Somerville. Various items were stolen including a television, a surround-sound home theatre system, a laptop computer, sunglasses, a camera lens, a clock and a camera tripod. The value of the property that was stolen was approximately $12,800. On 8 April 2015, the police executed a search warrant at the appellant's home and located the stolen items.

9 As to counts 2 and 3, on 8 May 2015, the victims, Mr Bosworth and Mr Treleaven, were at a barbecue. At some point, the topic of conversation turned to a recent burglary at Mr Bosworth's home where some CDs were stolen. Mr Bosworth believed that the CDs were at the appellant's nearby home unit. He and Mr Treleaven decided to go to the unit to retrieve them.

10 At about 9.30 pm, Mr Bosworth and Mr Treleaven went to the back gate of the appellant's property, which was closed. The appellant's partner went into the backyard. Both men asked for the return of the CDs. Mr Bosworth was told to go away.

11 At this point the appellant came downstairs and walked into the backyard. Angry words were exchanged between him and the two men who, at all times, remained outside the appellant's property and were separated from him by the back gate and a fence.

12 The appellant then went back into his unit, told his partner to call the police and then armed himself with a pocketknife. He was, at the time, already carrying another pocketknife.

13 The appellant returned to the back gate. Mr Bosworth looked through a hole in the back gate. The appellant then stabbed Mr Bosworth in the right eye with one of the knives. As a result, he is now blind in that eye (count 2). At first Mr Bosworth did not appreciate that he had been stabbed, but he felt a blow to his face. He thought that he had been punched. He walked down a driveway, followed by Mr Treleaven. The appellant jumped over the back gate or fence and came towards Mr Treleaven. He then stabbed him twice in the back. Fortunately, neither stab wound was serious. One of the wounds required stitching, while the other was glued (count 3).

14 Her Honour had the benefit of a pre-sentence report and a report written by a clinical psychologist, Ms Tina Marley, dated 3 July 2017. Both of these documents set out, in some detail, the appellant's personal history.

15 At the time of sentencing, the appellant was 38 years of age. At a very young age he was, in effect, abandoned by both his parents and has had to fend for himself. His childhood was dogged by lack of opportunity and homelessness.

16 He was introduced to illicit drugs at the age of 12. Since that time he has fluctuated in and out of daily drug use, particularly heroin. He was for a time on a methadone program.

17 The appellant has an extensive history of offending across four States. Since the age of 18 there have been no significant gaps in his offending behaviour. His criminal history in Western Australia begins in 2003 and is lengthy. It comprises a large number of dishonesty offences including for stealing, receiving, burglary and many traffic offences. On 20 February 2014, he was sentenced to a short term of immediate imprisonment for assaulting a public officer.

18 The appellant has a sporadic history of being gainfully employed and has worked as a mechanic.

19 The appellant and his partner have been together for 15 years and they have two children aged 13 and 8. He and his family live an insular and isolated life with no friends or support within the community. Her Honour accepted that the appellant was very close to his partner and children. In late 2015 or early 2016, his partner suffered a brain aneurism which has left her with some cognitive deficits.

20 According to Ms Marley, the appellant has symptoms which would likely meet a diagnosis of major depressive disorder. He also harbours antisocial attitudes which are reflected in the present offending. The appellant has limited capacity for empathy.

21 Her Honour referred to Mr Bosworth's victim impact statement. The consequences of the offending to him and his family have been profound.

22 Her Honour found that the overall offending on counts 2 and 3 was 'in the upper range of seriousness' by reason of the appellant's use of a knife and that he stabbed two victims. She said there was no mitigation to be found in the circumstances of these offences. In effect, she found that the offences were unprovoked and did not occur in self-defence or defence of his household. She noted that the offending was further aggravated because the appellant was on bail for count 1 at the time of those offences. Her Honour noted the observations made in both the pre-sentence report and the psychological report that the appellant displayed little remorse and, instead, felt justified by what he had done.

23 In terms of mitigating factors, with respect to count 1, her Honour acknowledged the appellant's plea of guilty and gave a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA). She referred at some length to the reports, noting the appellant's deprived background, his illicit drug use and some mental health issues.

24 Her Honour assessed the seriousness of count 2 by reference to the factors identified by Wheeler JA in Trompler v The State of Western Australia,[2] being:

(a) the nature of the harm which results from the offence;

(b) the nature of the act which causes the injury; and

(c) the background to, and circumstances of, the offence.

25 She also had regard to a number of sentencing decisions of this court.

26 Her Honour expressed the view that personal as well as general deterrence were important sentencing factors.

27 Her Honour noted the appellant's prior convictions, observing that although they were not an aggravating factor, he was not entitled to any leniency for prior good character.

General principles applicable to sentencing appeals

28 The general principles applicable to this appeal are well settled. The importance of the discretion conferred on sentencing judges must be kept firmly in mind. The role of an appellate court is not to substitute its opinion for that of the sentencing judge merely because it would have exercised the discretion in a different manner. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Both grounds of appeal allege implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.

29 The orthodox approach to an allegation that an individual sentence is manifestly excessive is to examine it having regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind and the personal circumstances of the offender.

30 The totality principle comprises two limbs. The first limb, which is relied upon by the appellant in this case, requires that the total effective sentence must bear a proper relationship to the overall criminality in all the offences, viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances.

32 As we have already observed, the maximum penalty for unlawfully doing grievous bodily harm is 10 years' imprisonment.

33 The appellant referred the court to a number of sentencing cases said to be comparable: Kere Kere v The State of Western Australia;[3] Gurgone v The State of Western Australia;[4] Peake v The State of Western Australia;[5] The State of Western Australia v Ghilardi;[6] Hunter-Aragu v The State of Western Australia;[7] Holden v The State of Western Australia;[8] Hansen v The State of Western Australia;[9] The State of Western Australia v Mackey.[10] It is unnecessary to set out the facts and circumstances of these cases.

34 The range of sentences customarily imposed for the offence of unlawfully doing grievous bodily harm has recently been discussed by this court in such cases as The State of Western Australia v Ellement[11] and Gurgone v The State of Western Australia.[12] The cases establish that there is no tariff for the crime of unlawfully doing grievous bodily harm. However, as a matter of fact, the ordinary disposition is a sentence of immediate imprisonment. It has been noted on a number of occasions that the general range of the sentences that have been imposed is between 8 months and 5 years 4 years' imprisonment with relatively serious examples of that offence attracting sentences of 3 to 5 years.[13]

35 Of course, it must be recognised that the range of sentences imposed in other cases does not fix the upper or lower limit of sentences to be imposed. The range of sentences which have been historically imposed provides a yardstick by which a sentencing court attempts to achieve consistency in sentencing and the application of relevant sentencing principles. In the end, each case must be decided on its own particular facts and circumstances.

36 In the context of reviewing her Honour's sentencing remarks, we earlier referred to the factors Wheeler JA set out in Trompler. When those factors are considered in this case, it can immediately be seen that the offence of unlawfully doing grievous bodily harm committed by the appellant was at the upper end of seriousness. The victim suffered the permanent loss of sight in his right eye. The consequences of this injury to the victim have been serious and profound. The appellant caused the injury by use of a knife. The use of a weapon is, as her Honour properly observed, an aggravating factor. Contrary to the oral submissions of the appellant and having regard to the findings of the sentencing judge, the offence was unprovoked. Mr Bosworth did not enter or attempt to enter the appellant's premises and posed no threat to the appellant or the appellant's family.

37 The appellant's personal circumstances were unfavourable. He failed to take responsibility for his actions. Matters of personal deterrence and general deterrence were plainly relevant sentencing factors. Although the appellant's plea of not guilty was not an aggravating circumstance, the mitigation a plea of guilty might have brought him was unavailable. While it may be accepted that the appellant's incarceration will have a negative impact on his family, in all the circumstances this matter can only be given very limited weight.

38 When all relevant sentencing factors are taken into account, we are not persuaded that a sentence of 5 years' immediate imprisonment was unreasonable or plainly unjust. It was not manifestly excessive. Leave to appeal on ground 2 should be refused.

39 The appellant's overall offending was very serious. Not only did he stab Mr Bosworth, but he also stabbed Mr Treleaven. Although the injuries that Mr Treleaven suffered were not as serious as those suffered by Mr Bosworth, the potential for serious injury is obvious. The receiving charge the subject of count 1 was a serious example of its type. In his house the appellant had a considerable amount of valuable property stolen from the victim. Apart from the plea of guilty, there was very little that could be said in mitigation in respect of this offence.

40 Personal deterrence loomed large in respect of count 1, having regard to the appellant's lengthy persistent record of dishonesty offences. It was well open to her Honour to impose some additional punishment for this offence, bearing in mind that it was committed some time before counts 2 and 3. Of course, it is aggravating that counts 2 and 3 were committed while the appellant was on bail for count 1.

41 Having regard to the appellant's overall criminality and all of the relevant sentencing factors, including the personal circumstances of the appellant, we are not persuaded that the total effective sentence infringed the first limb of the totality principle. Ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused.

42 Neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal must be refused with the consequence that the appeal must be dismissed. The orders of the court are:

1. Leave to appeal is refused on grounds 1 and 2.
2. The appeal is dismissed.

[1] Her Honour also made an order under s 63A of the Restraining Orders Act 1997 (WA). This order was not the subject of appeal.

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

[3] Kere Kere v The State of Western Australia [2016] WASCA 189.

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

[5] Peake v The State of Western Australia [2015] WASCA 239.

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

[7] Hunter-Aragu v The State of Western Australia [2015] WASCA 80.

[8] Holden v The State of Western Australia [2011] WASCA 238.

[9] Hansen v The State of Western Australia [2014] WASCA 229.

[10] The State of Western Australia v Mackey [2017] WASCA 204.

[11] The State of Western Australia v Ellement [2016] WASCA 1 [39].

[13] See Allen v The State of Western Australia [2017] WASCA 203 [61].