Criminal law and sentencing - Offence of doing an act with intent to cause harm and causing bodily harm - Whether immediate imprisonment open - Whether term of 2 years' imprisonment manifestly excessive

Director of Public Prosecutions for Western Australia

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

Cartwright v The State of Western Australia [2010] WASCA 4

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

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

Fogg v The State of Western Australia [2011] WASCA 11

Hinkley v The State of Western Australia [2014] WASCA 122

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

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

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

Salkilld v The State of Western Australia [2017] WASCA 168

Skipworth v The State of Western Australia [2008] WASCA 64

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

The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1

The State of Western Australia v Redman [2009] WASCA 1

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

Ugle v The State of Western Australia [2018] WASCA 16

Yates v The State of Western Australia [2008] WASCA 144

1. The appellant appeals against the sentence of 2 years' immediate imprisonment imposed on him for his conviction of three offences. The appellant was convicted, on his plea of guilty, of offences of doing an act with intent to harm and causing bodily harm, stealing and wilful damage. The appellant's sole ground of appeal alleges manifest excess in respect of both the type and length of the sentence imposed on the first of these offences. The appellant does not challenge the sentences imposed for the other offences.
2. For the reasons that follow, we are not persuaded that the sentencing judge erred in the exercise of her discretion.

1. The appellant was charged on a joint indictment with a co-offender, Mr N, who pleaded guilty and was sentenced at the same time as him. Many of the counts on the indictment did not relate to the appellant. The appellant was charged with counts 8, 10 and 12 on the indictment, to which he pleaded guilty. On those counts, the appellant was sentenced as follows:

With intent to harm, doing an act as a result of which bodily harm was caused, contrary to Criminal Code (WA) s 304(2).

Criminal damage, contrary to Criminal Code (WA) s 444.

1. Both before the sentencing judge[1] and this court, the facts of the appellant's offending were not in dispute. They may be summarised as follows.
2. At around 2.50 pm on 5 March 2017, on the social network application Grindr, the appellant and Mr N arranged a meeting with the victim, purportedly for sex. With the appellant's consent, Mr N sent the victim a photograph of the appellant.[2]
3. The appellant, Mr N and two other male alleged co-offenders, agreed that they would meet the victim with the common plan to beat him up. This assault was the subject of count 8. The victim arrived at the meeting location and the appellant stood waiting for him in front of some bushes in which the other three men hid. The victim approached and, recognising the appellant from the photograph, greeted the appellant. The three other men emerged from the bushes, approaching the victim. Mr N said something to the victim.
4. One of the alleged co-offenders then walked away.[3] The other walked behind the victim and struck him to the back of the head.[4] The victim attempted to run away.[5] Mr N tripped the victim, causing him to fall to the ground.[6] Mr N and one of the alleged co-offenders began to punch, kick and stomp on the victim's head, body and face. The appellant then punched the victim once in the face. The victim tried to protect himself by curling into the foetal position on the ground.[7]
5. The appellant took the victim's wallet, removed his licence and gave it to Mr N. While recording the assault on his mobile phone, Mr N read the victim's name from his licence, demanding that the victim never do this again. The appellant then took $40 from the wallet. This act was the subject of count 10.
6. One of the alleged co-offenders took the victim's house and car keys. The offenders then ran off.
7. The appellant and Mr N returned to the victim with the intention of taking his mobile phone. The victim handed it over after Mr N told him that if he did not he would kill him. The appellant and Mr N then ran away, stopping 100 metres from the victim. The appellant removed the phone's SIM card and handed the phone to Mr N. Mr N then stomped on the phone, smashing it, before placing it down a drain in the road.[8] The destruction of the phone was the subject of count 12.
8. The victim suffered bleeding to the brain and was hospitalised. He sustained bruising to his face, back and arms and abrasions to his face, legs and arms. The victim's injuries were medically reported to be of such a nature as to endanger or be likely to endanger his life.
9. The appellant participated in a police interview, making admissions as to his involvement.[9] He signed a witness statement and gave a written undertaking to give evidence against the alleged co-offenders.[10]

1. The appellant's personal circumstances were summarised by the sentencing judge without challenge on appeal, as follows.
2. The appellant was 19 years' old at the time of offending.[11]
3. He is the middle child of three born to his parents. His parents separated when he was around 7 years old.[12] He and his sisters remained living with his mother following the separation.[13] At the time of sentencing, he was living with his grandparents.[14]
4. His psychological report suggested a degree of volatility in his home environment, describing a history of home property damage as well as physical fights with his mother, father and sisters.[15] His comments to the psychologist suggest that he has experienced low-level symptoms of depression due to issues in his home life.[16] He had some counselling to address anger management issues.[17]
5. The appellant left school in about year 11,[18] after which he performed some work experience with his uncle and supplemented his Newstart allowance by umpiring volleyball and coaching a softball team.[19]
6. The appellant is a sportsman, having done athletics and played volleyball and basketball at a State level.[20] He has always had good physical health.[21]
7. At the time of sentencing, he had recently commenced a Certificate II in Construction and Building.[22] He wished to do a Certificate III in Bricklaying with assistance from TAFE and in the future secure an apprenticeship.[23]
8. Prior to sentencing, he had had one significant relationship which had ended earlier in 2017.[24] At the time of sentencing, he was in a new relationship which he described as positive.[25]

Psychological report and pre-sentence report

1. The psychological report before the sentencing judge indicated that:

(1) The appellant's self-reported history suggested a propensity for violent aggression. From that, it appeared that the appellant had developed faulty beliefs around conflict resolution.

(2) The appellant has issues with impulse control, emotional regulation and arousal, conflict resolution, lack of consequential thinking and ineffective decision-making, all of which appeared relevant to the present offending.

(3) The appellant had a tendency to follow others and to succumb to pressure to do things he may not necessarily agree with, in order to fit in with peers.

(4) However, the appellant's arrest appeared to have had a sobering effect, prompting him to make significant changes in his life.

(5) The appellant had dependent personality traits.

(6) The appellant acknowledged responsibility for his offending behaviour, candidly admitting it and impressing as genuinely remorseful and disgusted with his behaviour.

1. In the psychological report, the appellant was assessed as having some risk factors known to correlate with future violence. Nonetheless, he was assessed as not posing an unacceptable risk of future violence, given that he demonstrated:

(a) amenability to developing skills and strategies to curb violence and aggression;

(b) reasonable insight into the influence of negative peers and how to minimise risk of future violence; and

(c) motivation to effect lifestyle changes and comply with conditions and requirements imposed upon him.

1. The pre-sentence report included the following:

(a) the appellant articulated insight into his behaviour and expressed genuine remorse;

(b) the appellant was motivated to engage in treatment to improve his lifestyle, cease contact with negative peers and gain a meaningful education with a view to securing employment;

(c) the appellant was a suitable candidate for community supervision; and

(d) the appellant made no attempt to justify or minimise his actions.

1. Before the sentencing judge, it was conceded on behalf of the appellant that the only appropriate disposition was a term of imprisonment.[26] The thrust of the appellant's submission was that the term of imprisonment should be conditionally suspended. In support of that submission, counsel for the appellant emphasised:

(1) the appellant's remorse for, and disgust at, his offending conduct;[27]

(2) the fact that the appellant did not anticipate the level of violence that occurred;[28]

(4) the appellant's fast-track plea of guilty;[30]

(5) the appellant's cooperation and statement of evidence;[31]

(6) the appellant's significant admissions in his video record of interview;[32] and

(7) the public opprobrium arising from the media attention given to this offending.[33]

1. The judge outlined the facts and the appellant's personal circumstances. He identified the following aggravating factors:

(4) he was involved in the physical violence and punched the victim in the face;

(5) as a result of the assault, the victim sustained injuries of such a nature as to endanger or be likely to endanger his life, including bleeding to the brain;

(6) the appellant stole money from the victim's wallet;

(7) after the assault, the appellant returned with Mr N to take the victim's phone and removed its SIM card; and

(8) the appellant left the scene without attempting to render any assistance to the victim.[34]

1. The judge identified several mitigating factors:

(1) the early guilty plea, for which the appellant was awarded a 25% discount;[35]

(2) the appellant's acceptance of responsibility and remorse;[36]

(3) his youth, being 19 years old at the time of offending;[37]

(4) the appellant's admissions in his police interview;[38]

(5) his cooperation with police by providing a statement[39] and a written undertaking to give evidence against the alleged co-offenders;[40] and

(7) the appellant's prior good character, having only two traffic offences on his record.[41]

1. The judge gave a 40% discount from the total sentence of 3 years and 4 months' imprisonment that her Honour would otherwise have imposed, on account of the appellant's cooperation in the form of the signed witness statement and undertaking to provide evidence.[42]
2. The judge said that any public opprobrium experienced by the appellant was worthy of little weight in the sentencing process.[43]
3. The judge made these observations:[44]

[DKN], I have to protect members of the public from this type of offending. I have to punish you for what took place. I have to deter you from ever reoffending in this way. Gratuitous violence is regarded very seriously by the courts and it attracts condign punishment.

1. The judge observed (correctly) that there is no tariff for s 304(2) offences.[45] The judge referred (again, correctly) to the following factors as relevant to sentencing for s 304 offences:[46]

The nature and seriousness of the offender's intent to harm, the nature and seriousness of the bodily harm caused to a particular victim or the severity in other circumstances of the actual or likely endangering of the particular victim's life, health or safety as the case may be, the potential as distinct from the actual consequences of the offender's conduct.

1. Her Honour then continued, as follows:[47]

I am acutely aware that I cannot sentence you to a term of imprisonment unless it is the only appropriate sentence available in all the circumstances. Immediate imprisonment is very much a sentence of last resort. Only if I am satisfied that it is not appropriate to impose a term of suspended imprisonment should I impose a term of imprisonment which is to take effect immediately.

A court must not impose a term of imprisonment unless the seriousness of the offences is such that only imprisonment can be justified or the protection of the community requires it.

A suspended term of imprisonment can be imposed on the sentence up to 60 months, either as a single term or an aggregate term. A suspended sentence is to be viewed as a penultimate sentencing option in the scale of sentences, the ultimate being an immediate term.

As I have said, I must be positively satisfied that the option of suspending imprisonment and each remaining lesser option is not appropriate before I can impose a term of immediate imprisonment.

Taking into account all of the matters that I have mentioned, I have decided that the need to impose a sentence capable of acting as a personal and general deterrent is such that only imprisonment can be justified.

In my view, your offending is quite obviously too serious to permit one of the lesser sentencing options to be used.

1. The judge considered whether the appellant's sentence should have been suspended, reconsidering anew all relevant circumstances. Despite defence counsel's submissions that conditional or suspended imprisonment were appropriate,[48] the judge concluded that the appellant's offences were too serious to allow suspension.[49]

1. The sole ground of appeal is in the following terms:
   1. The learned sentencing judge erred by imposing a sentence that was manifestly excessive in all of the circumstances in respect of both the term of imprisonment imposed and the type of sentence imposed, particularly given:

(a) the appellant's role in the offending;

(b) the appellant's age;

(c) the appellant's antecedents;

(d) the appellant's remorse and acceptance of responsibility;

(e) the appellant's prospects of rehabilitation; and

(f) the public opprobrium suffered by the appellant.

(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 involves acting on a wrong principle, for example by 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) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of (1) the maximum sentence prescribed by law for the crime; (2) the standards of sentencing customarily imposed with respect to it; (3) the place that the criminal conduct occupies in the scale of seriousness of crimes of that type; and (4) the offender's personal circumstances.

(3) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. 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 resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

Suspended or immediate imprisonment - general principles

1. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act 1995 (WA), that it is not appropriate to impose suspended imprisonment.[50] In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[51]
2. In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.[52]
3. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.[53] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[54] Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.[55]
4. In Fogg v The State of Western Australia,[56] McLure P explained the approach to an appeal against the refusal to suspend a term of imprisonment on the ground of implied error. A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. Whether the suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision-maker. In borderline cases, different types of sentence may be reasonably open. In such a case, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.
5. Thus, in the absence of express error, it is for the appellant to satisfy the court that the primary sentencing court's judgment that suspension was not appropriate was a conclusion that was not reasonably open.
6. Section 76(3)(b) of the Sentencing Act provides that suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. Similarly, s 81(3)(b) provides that conditional suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended.

Offences against s 304(2) of the Code: general sentencing principles

1. 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.[57] There is no 'tariff' for offences against s 304(2).[58]
2. 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.[59]

1. The appellant acknowledges that there were serious elements of the assault on the victim. The assault was planned, sustained, involved the combined force of four offenders and resulted in an injury that could have endangered the victim's life.[60] Notwithstanding that, the appellant submits that the following considerations, taken together, demonstrate that the sentence imposed was manifestly excessive:

(1) The appellant had a lesser role in the offending. He was not the instigator of the offence and played a limited role in the physical assault.

(2) The appellant was young and of prior good character.

(3) The appellant demonstrated genuine remorse and acceptance of responsibility.

(4) The appellant has excellent prospects of rehabilitation.

(5) The appellant suffered public opprobrium as a result of inaccurate media coverage of the offending.

(6) The range of sentences customarily imposed for s 304(2) offences, insofar as they are comparable.[61]

1. The appellant acknowledges that there are no directly comparable authorities. The appellant points to a number of cases as having some similarities in that they involve a young offender, offenders with good antecedents or offences involving group assaults.[62]
2. The appellant also points to Blurton v The State of Western Australia,[63] in which conditional suspended sentences were imposed on two co-offenders.

1. As we have mentioned, suspended imprisonment and conditional suspended imprisonment cannot be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act. Those provisions are an impediment to the success of that part of the appellant's case which alleges that suspended or conditional suspended imprisonment should have been imposed in respect of count 8 where no challenge is made on appeal to the sentences of immediate imprisonment imposed in respect of counts 10 and 12. We will, however, consider whether, in any event, the appellant's contention that the sentence of 2 years' immediate imprisonment imposed for count 8 was manifestly excessive in respect of either the type or the length of the sentence imposed.
2. The maximum penalty for an offence against s 304(2) of the Code is 20 years' imprisonment.
3. The appellant's role in what occurred should not be underestimated. The following matters demonstrate the significance of his role and the serious criminality of his offending:

(1) The appellant planned to be involved in a violent offence. He joined in a plan to lure the victim on false pretences and for the victim then to be beaten up.

(2) The appellant allowed his photograph to be used as part of the means of luring the victim.

(3) The appellant met the victim at the planned location while the other offenders hid.

(4) When other offenders seriously assaulted the victim, the appellant did not protest or remove himself from the situation. To the contrary, he stood by and then joined in the assault, punching the victim in the face.

(5) After the assault, the appellant compounded the attack on the victim by stealing his wallet and removing money from it.

(6) Subsequently, after walking away from the scene, the appellant and Mr N returned. The appellant took the victim's mobile phone, removed the SIM card and gave the phone to Mr N.

1. Although the conduct referred to in (5) and (6) occurred after the commission of count 8 and was the subject of separate charges, it shed light on the appellant's culpability in committing count 8 and weighs against any suggestion that his involvement was fleeting.
2. Moreover, the attack on the victim caused him very serious, likely life-endangering, injuries including bleeding to the brain.
3. It is unnecessary to this appeal to enter into a general debate about the potential mitigatory weight of public opprobrium visited on an offender by reason of his or her crime. It is enough to say that, having considered the contents of the articles to which the appellant refers, it was well open to the judge in this case to give very little weight to public opprobrium as a factor in the sentencing process. The articles were all published on a single day. There is no evidence of any specific prejudice to the appellant from any publicity associated with his offending. It is true, as the appellant emphasises, that only his photograph appears in any of the articles. In circumstances where the appellant permitted his photograph to be used to lure the victim to a place where he would be beaten, it is difficult for the appellant to complain of the publicising of his photograph. In any event, all of the articles state that Mr N pleaded guilty to five attacks, while the appellant was involved in the fifth of those attacks.
4. Nothing in any decision of this court, including those to which the appellant has referred, provides any support for the appellant's assertion that the imposition of a term of immediate imprisonment upon him reveals implied error. All of the cases concerning offences under s 304(2) surveyed by McLure P in Penny v The State of Western Australia,[64] and those further collected in Ugle v The State of Western Australia,[65] involved terms of immediate imprisonment which were upheld on appeal. The decision of this court in Blurton does not assist the appellant. The conditional suspended imprisonment orders imposed on Blurton's co-offenders were not the subject of any appeal, making them of no comparative assistance.[66]
5. The appellant had many substantial mitigating factors in his favour. These included his youth; prior good character; genuine remorse and acceptance of responsibility; excellent prospects for rehabilitation; admissions to the police; early plea of guilty; and assistance, by way of witness statement and undertaking to give evidence. Notwithstanding these substantial mitigating factors, in our view, it was well open to the sentencing judge to take the view that these factors were decisively outweighed by the serious elements of the appellant's offending set out in [48] - [50], so that only a term of immediate imprisonment was appropriate. In our opinion, no other view was open. The combined serious features of the appellant's offending demanded the imposition of a term of immediate imprisonment.
6. Further, we are not persuaded that the length of the sentence for count 8 reveals implied error. Taking into account the matters to which we have referred, the sentence imposed seems to us to have been open on a proper exercise of the sentencing discretion.
7. Counsel for the appellant emphasised that, when account is taken of (1) the 40% discount for cooperation; (2) the 25% discount for the plea of guilty; and (3) the unquantified discount for the further substantial mitigating factors, the judge's starting point must have exceeded 5 years.[67] We accept that the appellant was entitled to substantial discounts for his admissions to police, genuine remorse, prior good character and youth. While manifest excess is assessed by reference to the sentence imposed rather than a notional starting point, we accept that the judge's starting point must have been at least 5 years even though mathematical precision is not possible given the unquantified discount for those factors. However, in all the circumstances, especially considering (1) the premeditation and planning of the offence; (2) the appellant's integral involvement in it; (3) the offending occurred in company; (4) the motive for the offending; and (5) the very serious injuries suffered by the victim, a starting point of that order does not indicate any error in, or misapplication of, the relevant sentencing principles.
8. For these reasons, the appellant has not established implied error.

1. While we would grant leave to appeal, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH

[2] ts 74; Appellant's submissions [10].

[8] ts 75; Appellant's submissions [22].

[45] ts 89 - 90 citing Lawrence v The State of Western Australia [2015] WASCA 187 [36].

[46] ts 90 citing Hinkley v The State of Western Australia [2014] WASCA 122 [18].

[51] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 [68]; Skipworth v The State of Western Australia [2008] WASCA 64 [8], [11].

[52] Cartwright v The State of Western Australia [2010] WASCA 4 [8]; Skipworth [8].

[53] Dinsdale [18], [26], [84].

[56] Fogg v The State of Western Australia [2011] WASCA 11, [8] - [10].

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

[59] 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.

[60] Appellant's submissions [35]; appeal ts 21.

[62] The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116; Yates v The State of Western Australia [2008] WASCA 144; Hinkley; Lawrence; and The State of Western Australia v Redman [2009] WASCA 1.

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

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

[65] Ugle v The State of Western Australia [2018] WASCA 16 [26].

[66] Salkilld v The State of Western Australia [2017] WASCA 168 [66].