Court of Appeal (WA)|2012-11-16|Before: Buss JA

PETRELIS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 235 (16 November 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PETRELIS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 235

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant charged with attempted murder - Appellant convicted after trial of unlawfully doing grievous bodily harm with intent to do some grievous bodily harm - Prior to trial the appellant offered to plead guilty to the offence of which he was convicted but on a factual basis not accepted by the trial judge at sentencing - Trial judge imposed a sentence of 7 years 9 months' imprisonment - Whether the sentence was manifestly excessive

Black v The State of Western Australia [No 2] [2010] WASCA 145

Clarkson v The State of Western Australia [2006] WASCA 250

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

McCormack v The Queen [2000] WASCA 139

McMaster v The Queen [2004] WASCA 52

Minhaj v The Queen [2000] WASCA 52

Pedersen v The State of Western Australia [2010] WASCA 175

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

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

Spooner v The State of Western Australia [2008] WASCA 86

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

The State of Western Australia v Jeffries [2007] WASCA 255

1 BUSS JA: The appellant has applied to this court for leave to appeal against sentence.

2 The sole count in an indictment alleged that on 5 December 2010 the appellant attempted to unlawfully kill his estranged wife, Lisa Ann Petrelis, contrary to s 283 of the Criminal Code (WA) (the Code). The maximum penalty for this offence is life imprisonment.

3 The appellant was tried in the Supreme Court before Jenkins J and a jury.

4 At the commencement of the trial, on 12 March 2012, the appellant pleaded guilty to unlawfully doing grievous bodily harm to Ms Petrelis, contrary to s 297(1) of the Code. The maximum for this offence is 10 years' imprisonment. The plea was not accepted by the State. The trial proceeded.

5 On 16 March 2012, the jury returned a verdict of not guilty of attempted unlawful killing, contrary to s 283 of the Code, but guilty of the alternative offence of unlawfully doing grievous bodily harm to Ms Petrelis with intent to do her some grievous bodily harm, contrary to s 294(1) of the Code. The maximum penalty for this offence is 20 years' imprisonment.

6 On 9 May 2012, the trial judge imposed a sentence of 7 years 9 months' imprisonment. She backdated the sentence to 6 December 2010, being the date on which the appellant was taken into custody for the offence. A parole eligibility order was made.

The facts and circumstances of the offending

7 At the time of the offending the appellant and Ms Petrelis were married but estranged. Previously, Ms Petrelis had applied for a violence restraining order against him. The order was granted and, on 6 November 2010, it was served on the appellant. After that date, there was, nevertheless, some contact between them.

8 As at 5 December 2010, Ms Petrelis was living in the former matrimonial home with two young children. The appellant was the children's father. As at 5 December 2010, the appellant was living with friends and, on occasions, in his motor vehicle.

9 The appellant's separation from Ms Petrelis was attended by disharmony. Hence, the violence restraining order. The appellant thought that Ms Petrelis's attitude towards him was unreasonable. He blamed her for the marital breakdown.

10 Her Honour found that the appellant brooded over what he believed was Ms Petrelis's unfair treatment of him. This belief, combined with the influence of illicit drugs, motivated the appellant to commit the offence. At the time of the offending he was consuming a large amount of methylamphetamine.

11 On the evening of 5 December 2010, Ms Petrelis and the children were at home. The appellant visited a friend and then went to Mr Petrelis's home. The trial judge found that, in his drug-fuelled state, the appellant probably hoped that Ms Petrelis would be welcoming and permit him to stay the night. Her Honour was not satisfied that at this stage the appellant had decided to attack Ms Petrelis.

12 The appellant arrived at Ms Petrelis's home at about 11.00 pm. The house was locked. He knocked on the window of her bedroom. She awoke. The appellant asked her to let him into the house because he was feeling unwell.

13 Ms Petrelis felt sorry for the appellant and, as a result, let him in. She did not, however, want him there. Her Honour found that Ms Petrelis's icy indifference to the appellant upset him.

14 Ms Petrelis permitted the appellant to use the bathroom. She went outside the house and smoked a cigarette. By the time she went inside again, the appellant had armed himself with a very large knife, which he found in the kitchen. He had decided to attack Ms Petrelis with it.

15 The appellant lunged at Ms Petrelis as she walked past. He pushed her towards the kitchen door. Initially, the appellant struck Ms Petrelis with his hands, but he then stabbed her with the knife on many occasions. The appellant pushed Ms Petrelis into the far corner of the kitchen dining area. He dropped the knife. Ms Petrelis escaped and ran to her bedroom.

16 The appellant followed and pushed Ms Petrelis onto the bed. The trial judge found that he was attempting to prevent her from telephoning for assistance. He was not then armed. The appellant got on top of Ms Petrelis and struck her repeatedly with his hands. They rolled from the bed onto the floor. The appellant put his arm around Ms Petrelis's neck. Her Honour sentenced him on the basis that he was not attempting to strangle Ms Petrelis.

17 At this stage, the elder child entered the bedroom. Ms Petrelis grabbed the appellant's crotch and bit his finger. She was able to get up and flee to the front yard. The appellant also left the house, jumped a fence and made his escape. The following day, he surrendered to the police.

18 A stab wound inflicted by the appellant caused a 1 cm hole in Ms Petrelis's small intestine or bowel. In the absence of medical treatment, she would probably have died from the injury. The trial judge found:

The depth of that wound could have been 3 to 4 cm, probably more, and it could also have been up to 10 cm in depth [26].

19 Ms Petrelis now has a large scar on her stomach from the surgery required to repair the hole.

20 The appellant also stabbed Ms Petrelis on other parts of her body. Her left palm, in particular her ring and little fingers, were injured. She received a laceration to the back of her left forearm. Stab wounds penetrated her upper left arm and her right lung. The knife lacerated her chin.

21 The appellant inflicted at least 11 stab wounds to the front of Ms Petrelis's body. Also, the blows with his hands caused serious bruising to her face and body.

22 Ms Petrelis spent three and a half weeks in hospital. She had to wear an arm brace for about three months.

23 Ms Petrelis said in a victim impact statement that on the night of the attack she believed she would die as she lay in a pool of blood waiting for the ambulance to arrive. It has taken a long time for her to recover physically. Ms Petrelis has some permanent scarring, some residual loss of feeling in her fingers and some continuing pain and physical weakness.

24 Ms Petrelis's relationship with her children has been affected adversely by the offending. The children are now anxious and cling to her. Her confidence has diminished and she is fearful of strangers and in unfamiliar situations.

25 The appellant was aged 37 at the time of the offending and was 39 when sentenced.

26 The appellant and Ms Petrelis had been friends for a number of years before they commenced a relationship. In November 2005, they were married. As I have mentioned, the relationship produced two children.

27 Overall, the appellant had a good employment history.

28 After the appellant separated from his wife, he missed the children terribly. His finances deteriorated.

29 As an adult, the appellant used illicit drugs from time to time. However, when his marriage began to disintegrate, he used methylamphetamine more frequently. When the offence occurred he was seriously abusing it.

30 Psychiatric evidence indicated that the appellant was not suffering from a psychological condition, a personality disorder or a psychological illness. Since he has been in custody he appears to have ceased using illicit drugs.

31 The appellant had no prior criminal record, although at the time of his offending he was on bail for other pending charges. The trial judge told him that he received credit for being of prior good character.

32 The information before her Honour included numerous written references from the appellant's friends and family members. They spoke highly of him as a person and a father. However, the authors of the references appeared to be unaware of the appellant's use of illicit drugs.

33 The trial judge decided that the appellant's offending was towards the upper end of the range of seriousness, but was not 'at the uppermost end' [49]. She said that the only matter which probably prevented the offending from being 'at the top of the scale of objective seriousness' was the lack of premeditation and pre-planning [49].

34 Her Honour referred to a number of aggravating factors, namely:

(a) the offending occurred at night when Ms Petrelis was alone and vulnerable in her own home;

(b) the appellant inflicted numerous wounds with a very large and dangerous weapon;

(d) the nature and extent of Ms Petrelis's injuries were severe;

(e) the appellant's attack upon her was ferocious, persistent and violent;

(f) the offending occurred while the appellant was subject to a violence restraining order;

(g) at least part of the offending was witnessed by the elder child;

(h) the appellant was reckless as to the possibility that his actions, in severely injuring Ms Petrelis, might make it more difficult for her to care for their children; and

(i) the appellant left Ms Petrelis's home without seeking any medical assistance for her, and he disposed of the clothing he was wearing that night before surrendering to the police.

35 The trial judge made these observations about the appellant having breached the violence restraining order on the night in question:

Much evidence was given during the trial about the contact you had with the victim in breach of that order. Your counsel impressed on the jury that the victim had permitted that contact. However, that does not excuse your behaviour. It was you who first contacted Mrs Petrelis in breach of the order. In doing so you preyed on her feelings of sympathy for you telling her how desperate you were because you had nowhere to go, and you wanted to see her and the children. Once having got your foot in the door back at home, so to speak, you did not want to leave.

I do not accept that on this particular evening Mrs Petrelis willingly let you into the house. You were again preying on her feelings of sympathy towards you by saying that you were unwell and needed to come in. Whilst there was evidence that, through your solicitors, you were negotiating a withdrawal of the violence restraining order, I understood that to be in the context of it being replaced by mutual understandings that you would stay away from one another. Those negotiations do not excuse your efforts to get into the house on this particular evening [51] - [52].

36 Her Honour noted the following mitigating factors:

(a) By letter dated 14 June 2011 to the Office of the Director of Public Prosecutions (DPP), the appellant offered to plead guilty to the offence of which he was ultimately convicted; that is, unlawfully doing grievous bodily harm to Ms Petrelis with intent to do her some grievous bodily harm, contrary to s 294(1) of the Code. The offer was unconditional, but a version of the facts, as stated in the letter, was inconsistent with the facts found by her Honour.

(b) As I have mentioned, at the commencement of the trial the appellant pleaded guilty to unlawfully doing grievous bodily harm to Ms Petrelis, contrary to s 297(1) of the Code.

(d) The appellant had some remorse. Her Honour was not satisfied, however, that the appellant's remorse for his offending was 'complete' [58]. She said the appellant appeared to be 'more sorry for [himself] than sorry for [his] offending' [58].

37 The appellant relies on three proposed grounds of appeal.

38 Ground 1 alleges that the trial judge erred in failing to give the appellant 'adequate discount' for his early indication of a plea of guilty to the offence of which he was ultimately convicted.

39 Ground 2 alleges that the sentence of 7 years 9 months' imprisonment was 'outside the range of sentences properly applicable'.

40 Ground 3 alleges that her Honour erred in imposing a sentence that was manifestly excessive.

41 Counsel for the appellant complained that the trial judge failed to give the appellant 'adequate discount' for his early indication of a plea of guilty to the offence of which he was ultimately convicted.

42 By letter dated 14 June 2011, the appellant's solicitors wrote to the DPP to ascertain 'whether the State might consider an alternative charge of intentional grievous bodily harm' under s 294(1) of the Code in satisfaction of the count in the indictment that the appellant had attempted to unlawfully kill Ms Petrelis. The letter set out a version of the facts, relevantly, as follows:

At about 11.30 pm on Sunday 5 December 2010, the accused attended his matrimonial home, 1 Exford Way Karrinyup. This is where the complainant was residing. The complainant let the accused into the residence and they conversed. After a period of time the complainant asked the accused to leave.

The accused perceived that the complainant was threatening him with a kitchen knife. In response to this and in an attempt to disarm her, the accused has struggled with the complainant and stabbed her multiple times.

The struggle continued up the passage and into the main bedroom of the residence. The complainant fled the house onto the street and the accused also fled.

In our respectful submission, it would not be in the public interest for this matter to go to trial and the interests of justice would be best served by the prosecution accepting a plea to intentional grievous bodily harm (under section 294 of the Criminal Code). As you will be aware this in itself is a very serious offence carrying a maximum term of 20 years imprisonment.

If the matter were to go to trial, there is a realistic possibility that the accused might be convicted of this offence in any event or even simple grievous bodily harm (under section 294), both being alternatives to the charge of attempted murder under section 283 of the Criminal Code.

Whilst we would not submit that there is no reasonable prospect of conviction on the principal charge as it currently stands, in our view (which is shared by Senior Counsel advising in this matter) the prospect of a conviction on the head charge is far from a foregone conclusion.

...

In all the circumstances we would respectfully enquire as to whether or not the State might be prepared to accept a plea of guilty to a charge under section 294 of the Criminal Code, namely intentional grievous bodily harm, in full satisfaction of the charge as it presently stands.

44 By letter dated 4 July 2011, a representative of the DPP informed the appellant's solicitors that the DPP was not prepared to accept a plea of guilty to a charge pursuant to s 294 in satisfaction of the count of attempted unlawful killing. The representative noted that '[grievous bodily harm] with intent will be available as an alternative verdict at trial'.

45 At the sentencing hearing before her Honour, defence counsel submitted in relation to the 'offer' in the appellant's solicitors' letter dated 14 June 2011:

This was an offer to plead guilty before the matter was even listed for trial. The trial proceeded and the interests of justice, we say, were facilitated on the single issue of intent. That was resolved in his favour. It was submitted that he should be dealt with on the basis that it was an early rather than fast tracked plea of guilty, but an early plea of guilty which facilitated the course of justice and that he should be entitled to the mitigatory effects of the initial offer to plead, which was rejected by the prosecution (ts 538 - 539).

46 Although the offer was referred to by defence counsel and the prosecutor at the sentencing hearing, the letters dated 14 June 2011 and 4 July 2011 were not tendered.

47 The following exchange occurred between the trial judge and defence counsel:

JENKINS J: What the state says is that the offer was made on conditions that certain facts be accepted by the state. Is that correct?

PERCY, MR: That was our - put it this way: it was our opening gambit. We say that's the way this was, and if they had have said to us, 'Well, we might accept that on the basis that you accept this.' Obviously that was going to be open to us, but we just met a brick wall. They just said, 'It is far too serious. We say we can establish intent to kill,' so it never went any further.

JENKINS J: So was it not then open for Mr Petrelis to enter the plea to this offence and for a trial of the issues to occur in respect of the facts?

PERCY, MR: My friend puts it this way, there would inevitably have been a trial of the issues and the complainant would have had to have given evidence. We say that's not the case. These things are regularly dealt with on the basis that whilst there might be some disagreement between the parties as to the exact nature of the facts, that that can be left for the court's judgment on the papers. We wouldn't have seen the matter having to proceed, and the witnesses being called, and the complainant having to give evidence, and that was his wish that that not have to occur (ts 539 - 540).

48 Her Honour said in her sentencing remarks that the offending was mitigated by '[the appellant's] offer to plead guilty and [his] plea to unlawfully doing grievous bodily harm at the commencement of the trial' [56].

49 After the trial judge imposed sentence, defence counsel tendered the letters dated 14 June 2011 and 4 July 2011 (ts 552). Defence counsel explained that he had not tendered the letters earlier because it had been necessary for him to send his instructing solicitor to retrieve them from elsewhere (ts 552). Her Honour heard further submissions from defence counsel and the prosecutor in relation to the letters and whether the sentence her Honour had imposed should be revised. Her Honour declined to vary the sentence. She published the following reasons, relevantly:

After delivering sentence Mr Percy sought to tender the letter to the DPP making the offer to plead guilty. That letter is dated 14 June 2011 and has become exhibit 3 on sentence. He also sought to tender the DPP's response which is dated 4 July 2011. It has become exhibit 4 on sentence.

These letters show that, contrary to the DPP's submissions on sentence, no conditions were placed on the offer made on 14 June to plead guilty to the offence under s 294, although a version of the facts was stated in the letter of offer which is not consistent with the facts as I have found them.

That version of facts states, for example, that the accused perceived that the complainant was threatening him with a kitchen knife. In response to this, and in an attempt to disarm her, the accused had struggled with the complainant and stabbed her multiple times.

...

I have considered those matters. I have ultimately decided that nothing that I have said or that the discount I have given for the plea of guilty should change other than of course I need to alter the facts relating to the offer.

...

I said in my sentencing remarks that I had given you credit for your offer to plead. I meant that. I said that I had given you credit, and I did give you credit for it. I evaluated the amount of that credit in the context of the extent to which it reflected your remorse, your acceptance of responsibility, and your willingness to facilitate the course of justice.

Sentencing is not a mathematical equation. The basic issue for me is that I must evaluate the credit to be given to you for your offer to plead in light of the principles stated in Cameron. Whilst the offer was not conditional, it was made on the basis of facts which were stated in the letter. These facts were repeated in part in your evidence which I do not or did not accept.

Having considered all the facts including your offer to plead guilty, I am of the view that the credit I have given to you for your remorse, your willingness to facilitate the course of justice and your acceptance of responsibility, is appropriate, and in making that judgment, I have taken into account the fact that you made an offer to plead guilty to this offence on 14 June 2011.

I have also taken into account that you did not ultimately enter that plea. I have also taken into account that the facts stated in the letter of 14 June 2011 and your evidence as to what occurred in the house on the date of the offence are not consistent with the facts as I have found them [64] - [66], [68], [74] - [77].

50 In Spooner v The State of Western Australia [2008] WASCA 86, the appellant was convicted by a jury on one count of wilfully lighting a fire under such circumstances as to be likely to injure or damage a person or property, contrary to s 32(a) of the Bush Fires Act 1954 (WA). He was sentenced to 12 months' immediate imprisonment. He appealed to this court against sentence. The appellant participated in two video-recorded interviews with police on 18 November 2005. During these interviews he admitted to having lit seven fires. He was charged, on indictment, with seven counts of lighting fires, contrary to s 32(a) of the Act. On 26 April 2007, the appellant, by a letter from his solicitors, offered to plead guilty to counts 4, 6 and 7 in full satisfaction of the indictment. The State rejected this offer. He then maintained pleas of not guilty and proceeded to trial on all seven counts. The appellant gave evidence at the trial. He admitted to lighting the fires the subject of counts 4, 6 and 7. He denied lighting any of the other fires. Notwithstanding that he admitted to lighting three fires, the appellant was convicted in respect of only one of them, namely the fire the subject of count 6.

51 Steytler P (McLure and Buss JJA agreeing) held in Spooner that the trial judge made an error in sentencing the appellant in that she made no reduction in the appellant's sentence for his offer to plead guilty to counts 4, 6 and 7 in full satisfaction of the indictment. The President said [19]:

In my respectful opinion, these are matters that should have resulted in some reduction in the appellant's sentence. They reflect an acceptance of responsibility, a willingness to facilitate the course of justice and, it seems to me, some remorse (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [11] - [15] (Gaudron, Gummow & Callinan JJ), [65], [74] - [75] (Kirby J)) in respect of the only count upon which the appellant was ultimately convicted. These factors operate in mitigation notwithstanding that no plea of guilty was ever entered: Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 [23]; Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465, 467 - 468 (Ipp J).

52 However, the court in Spooner dismissed the appeal on the basis that, in all the circumstances, it was not persuaded that any different sentence should have been imposed.

53 By s 8(4) of the Sentencing Act 1995 (WA), where a court reduces the sentence it would otherwise have imposed on an offender because of a mitigating factor (including a plea of guilty), the court must state that fact in open court. However, a failure to comply with s 8(4), by omitting to state in open court that a reduction has been made, is not an appealable error. Non-compliance with s 8(4) does not invalidate the sentence. See Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59] (Owen JA).

54 A sentencing judge is not obliged to specify the amount or the percentage by which a term of imprisonment has been reduced to reflect a plea of guilty. See Clarkson v The State of Western Australia [2006] WASCA 250 [31] (McLure JA); Royer [59]. This proposition applies, by analogy, where a custodial term has been reduced to reflect an offer of the kind made in Spooner.

55 In the present case, the trial judge referred, in her sentencing remarks, to the appellant's offer to plead guilty and his plea to unlawfully doing grievous bodily harm at the commencement of the trial. She said that the offer and the plea were mitigating. They reduced the seriousness of the appellant's offending [56].

56 Ground 1 is, in substance, a complaint about the attribution of weight.

57 An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.

58 In the present case, the trial judge took into account the appellant's offer and plea. She did not specify the amount or percentage of the discount, but she was not bound to do so.

59 It is not reasonably arguable that the weight which her Honour accorded to the offer and the plea amounted, in substance, to a failure to exercise the sentencing discretion.

61 It is convenient to consider grounds 2 and 3 together.

62 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of 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 in question, and the personal circumstances of the offender.

63 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only generally guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

64 As I have mentioned, the maximum penalty for the offence of doing any grievous bodily harm to any person, with intent to do some grievous bodily harm, contrary to s 294(1), is 20 years' imprisonment.

65 I have examined numerous prior cases of offending against s 294 which have at least some features comparable to the appellant's offending. This review indicates that the seriousness of the facts and circumstances of offending against s 294 can be highly variable. See Black v The State of Western Australia [No 2] [2010] WASCA 145 [28] (McLure P, Buss JA and Mazza J agreeing).

66 In The State of Western Australia v Jeffries [2007] WASCA 255, Steytler P (McLure and Miller JJA agreeing) referred to Stephens v The State of Western Australia [2005] WASCA 98 and the cases reviewed in Stephens. His Honour said:

Those were cases of causing grievously bodily harm with intent contrary to s 294 of the Criminal Code ... They reveal that in such cases sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, are not uncommon [12].

67 The cases reviewed in Stephens by McLure JA (Malcolm CJ and Roberts-Smith JA agreeing) included Minhaj v The Queen [2000] WASCA 52, McCormack v The Queen [2000] WASCA 139 and McMaster v The Queen [2004] WASCA 52.

68 More recently, the sentences which have been imposed for offences against s 294 were discussed in Eriha v The State of Western Australia [2011] WASCA 167 [50] - [55] (Mazza J, McLure P and Newnes JA agreeing). See also Rolfe v The State of Western Australia [2012] WASCA 169.

69 In the present case, the offending was very serious. The appellant attacked his estranged wife in her own home at night; he inflicted numerous wounds with a very large knife; the complainant was vulnerable and defenceless; the appellant's attack was ferocious and persistent; the offence was committed while the appellant was subject to a violence restraining order in relation to the complainant; some of the offending was witnessed by the elder child; both children were at home during the commission of the offence; the appellant left the premises without seeking any medical assistance for the complainant; and he was on bail for other offences when the offence in question occurred.

70 Counsel for the appellant submitted that the trial judge erred in characterising the offending as towards the upper end of the range of seriousness. According to counsel, the offence was not in 'the same category' as Minhaj, and should have attracted a substantially lesser sentence than was imposed in that case.

71 In Minhaj, the appellant was convicted after trial of unlawfully doing grievous bodily harm with intent, contrary to s 294 of the Code. He was acquitted on an alternative charge of attempted murder. He was sentenced to 12 years' imprisonment (8 years in transitional terms) with eligibility for parole. The appellant deliberately set his wife alight after throwing mineral turpentine over her. He threw the mineral turpentine over her when she was carrying her 7 month old child and when her 3 year old son was standing next to her. The offending was preceded by an argument between the appellant and his wife. The sentencing judge found that he attacked her 'in a blind rage'. The appellant assisted his wife immediately after he had set her alight by attempting to smother the flames with his hands. As a result, he suffered burns which required him to be treated in hospital for about 11 days. The crime was unplanned and unpremeditated, but the appellant did not act entirely on the spur of the moment. The complainant was very seriously injured. She suffered gross and permanent scarring of her face and body. She suffered possible psychological damage. The appellant demonstrated no real remorse. Although he assisted the complainant after setting her alight, he also urged her not to report him to the police and told her that she would not be believed. He gave evidence at the trial to the effect that the complainant had been working in the kitchen and that she had somehow managed to set her veil alight and that it was this which caused her injuries. Plainly, the jury by its verdict rejected this evidence. The Court of Criminal Appeal dismissed the appellant's appeal against sentence. Steytler J (Kennedy and Wheeler JJ agreeing) said that the sentence of 12 years' imprisonment, while at the upper end of the scale, was not outside the range of a sound discretionary judgment.

72 It must be emphasised that the sentencing outcome in one case does not establish a sentencing range or fix limitations upon the proper exercise of the sentencing discretion in another case. Similarly, whether a sentence in a particular case is within a sentencing range or is manifestly excessive is not determined by applying a label to the seriousness of the offending (for example, at or towards the upper end of the range of seriousness) and then comparing it with any labels applied in other cases. It is necessary to examine the facts and circumstances of the particular case and to make a broad comparison with the facts and circumstances of other cases having some comparable features.

73 In the present case, the trial judge rejected the appellant's evidence that the complainant held the knife and he turned it on her [8]. Her Honour also said that the appellant's evidence to the effect that he did not recall what happened during the attack until the complainant was against the wall in the corner of the kitchen dining area, and that he did not 'come out of that state' until he had left the house, appeared to be self-serving [8].

74 It is true that the appellant's offer to plead guilty to the offence of doing grievous bodily harm with intent, and his plea to doing grievous bodily harm, were mitigating factors. However, the appellant did not enter a plea of guilty to grievous bodily harm with intent.

75 Although the trial judge accepted that the appellant was, to some extent, remorseful, she was not satisfied that he was 'entirely remorseful' or that he had accepted responsibility for his actions [6]. By contrast, Dr Victoria Pascu, a consultant psychiatrist who examined the appellant at the request of his solicitors, expressed the view in a report dated 12 April 2012 that the appellant was 'very remorseful about his actions'. Similar views were expressed by the authors of some written references. The report and the written references were before her Honour. The trial judge's conclusions in relation to remorse were reasonably open. She saw and heard the appellant give evidence in the context of the trial as a whole and was able to assess that evidence in the context of the information provided at the sentencing hearing.

76 As I have mentioned, sentencing ranges can provide only general guidance; a sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive; and each case turns on its own particular facts and circumstances.

77 I am satisfied that when all of the facts and circumstances of the appellant's offending and his personal circumstances, including all aggravating factors and all mitigating factors, are evaluated and weighed, it is not reasonably arguable that the sentence of 7 years 9 months' imprisonment was 'outside the range of sentences properly applicable', as alleged in ground 2. In particular, the sentence was not relevantly inconsistent with the sentencing outcome in Minhaj.

78 Further, I am satisfied that the sentence imposed by the trial judge was not beyond the range open on a sound exercise of the sentencing discretion. When the sentence is considered, in the context of the maximum penalty, the objective seriousness of the appellant's offending, the general standards of sentencing for this kind of offence, the appellant's personal circumstances and all aggravating factors and all mitigating factors, it is not reasonably arguable that the sentencing outcome was plainly unreasonable or unjust.

79 Grounds 2 and 3 have no reasonable prospect of success.

80 I would refuse leave to appeal. The appeal must therefore be dismissed.

Black v The State of Western Australia [No 2]

At a glance

Court

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Before

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Judgment (121 paragraphs)

PETRELIS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 235 (16 November 2012)

Parties

Legislation Cited (1)

Cases Cited (4)