Criminal law and sentencing - Appellant convicted of doing an act with intent to harm as a result of which the life, health or safety of another was or was likely to be endangered - Early plea of guilty - Whether term of 4 years' immediate imprisonment was manifestly excessive

Blurton v The State of Western Australia [2014] WASCA 61

Chikonga v The State of Western Australia [2017] WASCA 34

De Alwis v The State of Western Australia [No 2] [2015] WASCA 42

Kaokula v The State of Western Australia [2016] WASCA 198

Lawrence v The State of Western Australia [2015] WASCA 187

McAllister v The State of Western Australia [2017] WASCA 183

Penny v The State of Western Australia [2016] WASCA 52

Sophiadakis v The State of Western Australia [2016] WASCA 203

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

1 The appellant applies for leave to appeal against a sentence of 4 years' immediate imprisonment imposed following her conviction, on her plea of guilty, of one count of doing an act with intent to harm, as a result of which the life, health or safety of another was, or was likely to be, endangered, contrary to s 304(2) of the Criminal Code (WA) (the Code). The sole ground of appeal is that the sentence imposed was manifestly excessive. In our opinion, there is no merit in that complaint. Consequently, leave to appeal must be refused, and the appeal dismissed.

2 The facts were not in dispute before the sentencing judge or before this court. They may be summarised as follows.[1]

3 The appellant and a co-offender, with whom the appellant was (and is) in a de facto relationship, were convicted of the same offence.

4 The victim was unknown to the appellant. The appellant and the co-offender believed that the victim was responsible for the earlier death of the appellant's sister. That belief arose from things said to the appellant by one of her associates. It was incorrect. The victim had no involvement in the death of the appellant's sister.

5 The appellant approached the victim and asked about his involvement in her sister's death. The victim ran away. The appellant chased him. In seeking to protect himself, the victim took an item from a bin and attempted unsuccessfully to strike the appellant with it.

6 The victim walked away and was pursued again by the appellant. There was some pushing and shoving between them. Again, the victim attempted to walk away but was followed by the appellant.

7 A bystander, who was related to one of the parties, intervened, unsuccessfully trying to separate the appellant from the victim.

8 By this stage, the appellant had armed herself with a hammer. The appellant struck the victim with the hammer on a number of occasions. The scuffle continued, with the victim trying to take the hammer away from the appellant. The appellant then struck the victim again with the hammer, causing the victim to lose consciousness and to collapse to the ground.

9 While the victim was on the ground, the appellant stomped on his head and neck twice.

10 The co-offender then became involved, kicking the victim in the chest. The appellant then kicked the victim three times to the chest.

11 The appellant was 32 years old at the time of sentencing. The appellant is the third eldest of seven siblings with whom she reports she had supportive relationships. The appellant's upbringing was disrupted by family domestic violence and involvement in family feuding, family crises and a transient lifestyle.

12 At the time of sentencing, the appellant had been in a relationship with the co-offender for 12 years. The appellant has three children aged 11, 13 and 17, in Child Protection and Family Services' care, who reside with the appellant's aunt. The appellant is proud of all of her children who are achieving well academically and in sports.

13 The pre-sentence report included the following, many of which were noted by the sentencing judge:

(a) in the past, the appellant has had difficulties with alcohol dependency and controlling her emotions;

(b) the appellant has an extensive offending history comprised of dishonesty, driving and violence related offences;

(c) a trend toward violent offending had emerged prior to sentencing;

(d) the appellant's risk of re-offending appeared unlikely to be reduced by anything other than intensive intervention; and

(e) a number of factors may influence the appellant's risk of re-offending, including alcohol abuse, entrenched negative peer associations, lack of emotional regulation skills, pro-criminal attitude, entrenched unemployment and limited pro-social supports.

14 The sentencing judge outlined the facts and the appellant's personal circumstances which we have already summarised. His Honour's sentencing remarks included the following:[2]

(a) The offence was aggravated by (1) the use of a weapon to render the victim unconscious; and (2) the fact that the appellant then stomped on the victim's head and kicked him while he was unconscious.

(b) The offending conduct was persistent. The appellant continued to pursue and assault the victim, even though the victim retreated on a number of occasions and even though someone intervened to try to separate the appellant from the victim.

(c) Although not at the earliest reasonable opportunity, the appellant's guilty plea was at an early opportunity sufficient to warrant a 20% discount.

(d) The appellant was genuinely remorseful and understood, once sober, the fear the victim must have felt, though the issue was not with the appellant's behaviour when sober but rather when under the influence of alcohol.

(e) The appellant's prior record would not lead his Honour to increase the sentence but did preclude him from being as lenient as he otherwise would have been.

15 His Honour concluded that the seriousness of the appellant's offending meant that immediate imprisonment was the only appropriate disposition. There is no challenge to that conclusion.

16 The judge imposed a sentence of 4 years' immediate imprisonment on the appellant, with eligibility for parole.

17 The appellant relies on one ground of appeal, namely that the sentencing judge imposed a sentence that was manifestly excessive having regard to the circumstances of the case, the personal circumstances of the appellant and sentencing standards.

18 The appellant submits that the sentence of 4 years' immediate imprisonment was manifestly excessive as to length as it was inconsistent with the sentencing standards for offending of this type.[3] The appellant submits that having regard to the remorse and victim empathy shown by the appellant, error should be implied based on the length of the sentence imposed compared to the range of sentences ordinarily imposed in other cases.[4]

19 The appellant relies on the following cases as comparable cases revealing that her sentence was manifestly excessive: Sophiadakis v The State of Western Australia;[5] De Alwis v The State of Western Australia [No 2];[6] Blurton v The State of Western Australia;[7] and The State of Western Australia v Wallam.[8]

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 penalty for the offence of which the appellant was convicted is 20 years' imprisonment.

22 Section 304 of the Code has been in operation since May 2004. There have been a limited number of appeals against sentence for offences against s 304(2). That section covers a wide variety of conduct of widely differing levels of seriousness. That must be borne in mind in considering whether a case is relevantly comparable for consistency purposes.[9] There is no 'tariff' for offences against s 304(2).[10]

23 Among the factors relevant to sentencing for an offence under s 304(2) of the Code are:

(1) the nature and seriousness of the offender's intent to harm;

(2) the nature and seriousness of any bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety as the case may be; and

(3) the potential, as distinct from the actual, consequences of the offender's conduct.[11]

24 The appellant's offence was a serious example of an offence against s 304(2). The sentencing judge correctly identified the following features of the appellant's offence as elevating its seriousness:

(2) the appellant's persistence despite attempts by the victim to get away and despite the intervention of a third party; and

(3) even after the victim was unconscious on the ground, the appellant continued her attack on him, stomping on his head and kicking him.

25 Although the appellant's remorse and empathy for the victim was in her favour, the sentencing judge's observation that the problem lay in the appellant's behaviour when she was under the influence of alcohol, not when she was sober, was, as her record of offending reveals, well placed.

26 Consideration of reasonably comparable cases does not support a conclusion that the appellant's sentence was manifestly excessive. The appellant referred to only four cases. Four cases are not sufficient to reveal a pattern of sentencing. We refer to the survey of comparable cases by McLure P in Penny v The State of Western Australia.[12] We also refer to the subsequent decisions of this court in Kaokula v The State of Western Australia, Sophiadakis v The State of Western Australia, Chikonga v The State of Western Australia and McAllister v The State of Western Australia.[13]

27 The most closely comparable case would appear to be Sophiadakis. In that case the offender struck the victim repeatedly on the head with a hammer, for which she was sentenced to a term of 4 years' immediate imprisonment. However, in that case the offender committed a number of offences and the appeal ground was (relevantly) totality. There was no ground alleging the sentence for the offence against s 304(2) was manifestly excessive.

28 None of the other cases are directly comparable to the present case. It is not necessary to outline the facts of the offending, the offender's personal circumstances and the sentences imposed in each of those other cases. While some of them have some similar features, they also have significant differences in the circumstances and manner of offending.

(2) the seriousness of the appellant's offence, including the features to which we have referred at [24] 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' immediate imprisonment was commensurate with the seriousness of the offending and was within the range open to the sentencing judge on a proper exercise of his discretion.

30 It cannot reasonably be contended that the appellant's sentence was manifestly excessive.

31 For the reasons we have given, we would refuse leave to appeal and dismiss the appeal.

[1] The outline of the facts which follows is taken substantially from the sentencing remarks (ts 2 - 3).

[4] Appellant's submissions [39] - [40].

[5] Sophiadakis v The State of Western Australia [2016] WASCA 203.

[6] De Alwis v The State of Western Australia [No 2] [2015] WASCA 42.

[7] Blurton v The State of Western Australia [2014] WASCA 61.

[8] The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116.

[9] Chikonga v The State of Western Australia [2017] WASCA 34 [23] and cases there cited.

[10] Lawrence v The State of Western Australia [2015] WASCA 187 [36] - [37].

[11] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [136]; Kaokula v The State of Western Australia [2016] WASCA 198 [63] and cases there cited.

[12] Penny v The State of Western Australia [2016] WASCA 52 [33] - [40].

[13] McAllister v The State of Western Australia [2017] WASCA 183.