Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Appellant convicted of unlawfully doing grievous bodily harm - Early plea of guilty - Whether term of 4 years 6 months' immediate imprisonment manifestly excessive

Application for an extension of time to appeal dismissed

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

Djiagween v The State of Western Australia [2012] WASCA 141

Ellis v The State of Western Australia [2013] WASCA 220

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

Hobby v The State of Western Australia [2011] WASCA 197

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

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

Mercanti v The State of Western Australia [2009] WASCA 109

Reynolds v The State of Western Australia [2017] WASCA 214

Steel v The State of Western Australia [2010] WASCA 118

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

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

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 [No 2] [2010] WASCA 208

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

1 JUDGMENT OF THE COURT: The appellant has applied for an extension of time to appeal and leave to appeal against a sentence of 4 years 6 months' immediate imprisonment imposed following his conviction, on his plea of guilty, of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Criminal Code (WA) (the Code).

2 The sole ground of appeal alleges that the sentence was manifestly excessive. For the reasons that follow, there is no merit in the ground of appeal. Consequently, we would dismiss the application for an extension of time, refuse leave to appeal and dismiss the appeal.

3 The appellant knocked on the front door of the victim's home. He did not know the victim. Very soon after the victim answered the appellant's knock, the appellant struck the victim's head and body with a wooden article which he used as a weapon. The appellant continued to do this after the victim fell to the ground outside the front door.

4 The victim suffered substantial head injuries, including a left subarachnoid haemorrhage, a fracture of the occipital bone (at the base of the skull), a fracture of the left cricoid (in the neck), a left forearm laceration and multiple head lacerations.

5 The victim suffered permanent injury, losing his senses of taste and smell, as a result of his head injury. The loss of the sense of smell compromises his employment. He also has residual tenderness at the site of the occipital fracture and scarring to his left arm.

6 In addition to the enduring effects of the victim's substantial injuries already referred to, the victim suffers from anxiety, particularly when anyone knocks at his front door, and has lost his enjoyment of food and wine. His motivation and self-esteem have been affected.

7 The appellant was 35 years of age when he was sentenced. He grew up in New Zealand, having a positive family upbringing.

8 The appellant left school when he was about 16, working at a sawmill for the following three years. When he was about 19 years of age he moved to Australia with his father. Subsequently, he obtained reasonably regular employment.

9 The appellant was, as noted in the psychologist's report before the sentencing judge, 'guarded' as to his use of illicit substances and any hallucinations that he may have suffered in the course of doing so.[1] The psychologist's report speculated that the appellant may have suffered a psychotic episode, including auditory hallucinations, as a result of methylamphetamine use.[2]

10 The appellant did not offer any explanation for his offending. However, in the course of the plea in mitigation before the sentencing judge, then counsel for the appellant submitted that the offence should be understood as having been committed while in a drug-induced psychosis.[3]

11 The appellant had a record of convictions in New South Wales including common assault, property damage and breach of an apprehended violence order committed in the context of a relationship breakdown.

12 The sentencing judge outlined the facts and the appellant's personal circumstances to which we have already referred.

13 The sentencing judge observed that while the court did not have the benefit of psychiatric evidence, in the absence of any other explanation it was reasonable to proceed on the basis that the appellant was affected by methylamphetamine to the extent that he experienced a psychotic episode.[4]

14 The sentencing judge identified the following serious features of the appellant's offence:

(1) The appellant committed an unprovoked assault on a person he did not know. The appellant's conduct was 'gratuitous and senseless violence'.[5]

(2) The offence was aggravated by the use of a wooden item as a weapon, by the extent of the injuries to the face and head of the victim and by the persistence of the appellant's attack on the victim.[6]

(3) The offence was also aggravated by the fact that the victim gave the appellant no cause whatsoever for grievance, was not known to the appellant and had no means of defending himself from the unexpected attack.[7]

(4) The attack occurred at the front door of the victim's home.[8]

15 These circumstances in combination meant, his Honour observed, that the case was in the mid to high level of seriousness of offences of this kind.[9]

16 The judge discounted the head sentence he would otherwise have imposed, on account of the appellant's plea of guilty, by 25%.[10]

17 The judge imposed a term of imprisonment of 4 years 6 months' immediate imprisonment, backdated to commence on 9 March 2016.[11]

18 There is one ground of appeal. It asserts that the sentencing judge erred in imposing a sentence that was manifestly excessive having regard to the circumstances of the offence, the personal circumstances of the appellant and the sentencing standards for offending of this type.

19 The appellant emphasises that he entered an early plea of guilty.[12] The appellant submits that a review of comparable cases establishes that his sentence is outside the range of permissible sentences.[13] In this regard, the appellant relies on a number of cases.[14]

1. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2. A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant 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.
3. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. The guidance afforded by comparable cases is flexible rather than rigid. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
4. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

21 The maximum sentence for an offence against s 297(1) of the Code is 10 years' imprisonment.

22 In Trompler v The State of Western Australia,[15] Wheeler JA referred to three factors which are generally of significance when assessing an offender's criminality in respect of an offence of unlawfully doing grievous bodily harm, namely:

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

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

23 The unlawful doing of grievous bodily harm to another is an offence that can be committed in a wide variety of circumstances by offenders whose personal circumstances can also vary greatly. In Trompler, Wheeler JA, with whom Buss JA agreed, concluded that the post-transitional range for offences which were towards the upper end of the range of seriousness but not of the most serious kind was between 3 to 5 years' imprisonment.[16] McLure JA identified the post-transitional range for offences of this type as being between 8 months and 5 years 4 months' imprisonment.[17] The sentence of 8 months at the lower end of that range was noted by her Honour as being 'undoubtedly merciful'.[18] The cases falling within that range that were reviewed by McLure JA all involved a plea of guilty.

24 The ranges identified in Trompler have been consistently referred to with approval in subsequent cases.[19]

25 As his Honour rightly observed, the serious features of the appellant's offence meant that it was in the mid to high level of seriousness of offences of this kind. Those features included the following:

(1) the appellant's attack on the victim was entirely unprovoked, the victim and appellant never having previously met;

(2) the attack occurred at the front door of the victim's home, when he answered the appellant's knock on the door;

(4) the unexpected nature of the attack and the appellant's use of a weapon made the victim vulnerable, he having no means of defending himself;

(5) the appellant's attack on the victim was persistent; and

(6) the victim suffered substantial head injuries and permanent physical and enduring psychological harm.

26 Consideration of reasonably comparable cases does not support a conclusion that the appellant's sentence was manifestly excessive. We have considered numerous sentencing appeals concerning offences against s 297(1) of the Code, including those referred to by the appellant, as well as the decisions to which we have referred.[20] Taking into account the different circumstances of the offences and the offenders in those cases, the appellant's sentence is broadly consistent with the sentences in other reasonably comparable cases.

(2) the seriousness of the appellant's offence, including the features to which we have referred at [25] above;

(3) the place the appellant's offence occupies on the scale of seriousness of offences of this kind;

(5) the general pattern of sentencing for offences of this kind;

(7) the mitigating factors to which the sentencing judge referred;

it is not reasonably arguable that the length of the term of imprisonment was unreasonable or plainly unjust. The sentence of 4 years 6 months' immediate imprisonment was commensurate with the seriousness of the offence and was within the range open to the sentencing judge on a proper exercise of his discretion. Consequently, we would dismiss the application for an extension of time and refuse leave to appeal.

28 For these reasons, we would order that the application for an extension of time to appeal be dismissed, leave to appeal be refused and the appeal be dismissed.

[1] Psychological report of Bart Wszola dated 22 July 2017, page 5.

[2] Psychological report of Bart Wszola dated 22 July 2017, page 5.

[13] Appellant's submissions [10] and following.

[14] Ellis v The State of Western Australia [2013] WASCA 220; Hobby v The State of Western Australia [2011] WASCA 197; Holden v The State of Western Australia [2011] WASCA 238; Steel v The State of Western Australia [2010] WASCA 118; Winmar v The State of Western Australia [2016] WASCA 62; The State of Western Australia v Ghilardi [2015] WASCA 61 and Gurgoyne v The State of Western Australia [2016] WASCA 9.

[15] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11].

[19] Mercanti v The State of Western Australia [2009] WASCA 109; Ward v The State of Western Australia [No 2] [2010] WASCA 208; Hobby v The State of Western Australia [2011] WASCA 197; Djiagween v The State of Western Australia [2012] WASCA 141; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Ellis v The State of Western Australia [2013] WASCA 220; The State of Western Australia v Ghilardi [2015] WASCA 61; Kere Kere v The State of Western Australia [2016] WASCA 189; Allen v The State of Western Australia [2017] WASCA 203 [61]; The State of Western Australia v Mackey [2017] WASCA 204 [42]; Reynolds v The State of Western Australia [2017] WASCA 214.

[20] See footnote 17 above, and see the recent survey of cases in Mackey.