Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Offences of aggravated assault causing bodily harm, common assault and attempt to pervert the course of justice - Total effective sentence 4 years - Whether offends totality principle

Borsa v The Queen [2003] WASCA 254

Bropho v Hall [2015] WASC 50

Brown v Bluett [2013] WASC 189

Chadd v The State of Western Australia [2013] WASCA 99

Dudzik v The State of Western Australia [2012] WASCA 195

Giglia v The State of Western Australia [2010] WASCA 9

Glossop v The State of Western Australia [2013] WASCA 64

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Messiha v Plaucs [2012] WASC 63

Morgan v Kazandzis [2010] WASC 377

Nelson v Haynes [2003] WASCA 7; (2003) 27 WAR 154

Roffey v The State of Western Australia [2007] WASCA 246

Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337

Vella v The State of Western Australia [2006] WASCA 129

Winmar v The State of Western Australia [2016] WASCA 184

1 REASONS OF THE COURT: The appellant seeks leave to appeal his conviction and sentence on 11 offences to which he pleaded guilty and for which he was sentenced to a total effective sentence of 4 years' immediate imprisonment. For the reasons that follow, in our opinion the sole ground of appeal in each appeal has no reasonable prospect of succeeding. Consequently, we would not grant leave to appeal the conviction or sentence.

2 The appellant pleaded guilty to one count of attempting to pervert the course of justice, and 10 other matters brought before the court on a s 32 notice. These were two offences of aggravated assault occasioning bodily harm, five counts of aggravated common assault, one count of possessing a prohibited drug and two counts of possessing drug paraphernalia.[1]

3 The attempt to pervert the course of justice and the assault offences arose in the context of the appellant's relationship with the complainant. They had been in a relationship since about July 2014. The offences occurred on three distinct occasions.

4 The first group of offences occurred on 27 December 2014. The appellant and the complainant were at home in bed. The complainant was 21 weeks pregnant. When the complainant received a phone call, the appellant examined her phone and discovered messages apparently from the caller. The appellant concluded that the complainant had been unfaithful to him. He then became angry. He punched her on the left side of the face striking her jaw. That is the subject of an aggravated common assault charge.

5 The appellant climbed on top of the complainant, who was lying in bed, and grabbed the straps of her shirt and bra, tearing the shirt down the middle. The struggle caused an injury to the complainant's shoulder, that being the subject of another aggravated common assault charge.

6 The appellant told the complainant to go to the bathroom so he could have a cigarette. He demanded to be let into the bathroom. The appellant struck her on the forehead with his fist forcing her head into the tiled wall and causing her to slide to the floor. That is the subject of another aggravated common assault charge.

7 The appellant continued to grab the complainant's arms, hair and shirt to pull her up. He pulled out a clump of the complainant's hair and struck her to the back with a hard object causing her pain. That is the subject of a further aggravated common assault charge.

8 The appellant then grabbed the complainant by the throat, constricting her airway and causing her to lose consciousness. She was left with bruising to her neck and throat. That conduct constituted the offence of aggravated assault occasioning bodily harm.

9 After sleeping for a time, the appellant woke and struck the complainant with the back of his hand to her nose causing her pain. That is the subject of an aggravated common assault charge.

10 The complainant made a complaint to the police, who attended the apartment on 30 December 2014. In the course of that police located cannabis and a glass smoking implement in the kitchen and a smoking implement in the lounge.

11 The appellant was released on bail, with protective conditions.

12 Nevertheless, the appellant and the complainant resumed their cohabitation.

13 Their child was born in April 2015. The son was removed from the care of the complainant and the appellant by the Department of Child Protection on 6 July 2015.

14 About a week later, on 14 July 2015, the appellant committed the offence of aggravated assault occasioning bodily harm on the complainant. He threw two washing baskets at her, causing her to fall to the ground. When she was on the ground, the appellant pinned her down with the legs of a chair, shouting at her and threatening to put the chair through her head. The appellant struck her several times to the face and body causing bruising to her arms. The assault occurred over a period of about 20 minutes.

15 When he was arrested for that offence on 22 July 2015, the appellant was remanded in custody. While in custody the appellant had phone contact with the complainant endeavouring to persuade her to withdraw the charges against him. She repeatedly refused to do that.

16 On 28 September 2015, when the complainant visited him in prison, the appellant gave her a note setting out the steps she was to take in order to have the charges against him withdrawn. The note provided the wording of a letter she was to write, which she was to sign in the presence of a justice of the peace and then provide to the appellant's lawyer. The note also told her that she should come to court and confirm the veracity of her letter. In the letter she would confess to falsifying the allegations against him because of intoxication and mental health issues.

17 The primary judge outlined the facts of the appellant's offences. The sentencing judge made a number of observations about serious features of the appellant's offending. Given the ground of appeal, it is not necessary to go into the detail of those observations.

18 The appellant was 32 years old when he was sentenced so he no longer had the benefit of youth. He had a prior criminal record including offences of violence, multiple offences against police orders and violence restraining orders as well as drugs and property offences. Some of the previous convictions were for violence against his then partner.

19 The sentencing judge observed that the appellant's record suggested specific deterrence was a significant sentencing consideration.

20 The appellant was born in Bunbury and lived there for 16 years. His father was violent and abusive towards him and he also witnessed the abuse of his mother.

21 The appellant left high school after completing year 9 and commenced employment. Through most of the years he has maintained stable employment.

22 The appellant has had three significant relationships, all of which have involved substance abuse and domestic violence.

23 The primary judge referred to the report of a psychologist who observed that the drivers of the appellant's offending appeared to include a dysfunctional childhood; threat sensitive thinking in relationships; fear of abandonment; indiscriminate relationship choices; immaturity, poor judgment and relationship skills; impulsivity and poor emotional regulation; poor consequential thinking; and poor conflict resolution skills.

24 The author of the report assessed the appellant as having a high risk of reoffending in a similar manner unless those issues were addressed. The sentencing judge observed that that reinforced the significance of specific deterrence.

25 The sentencing judge observed that it was to the appellant's credit that he had used time in custody in a constructive way to undertake some courses.

26 The sentencing judge further observed that there was little in the way of mitigation in the appellant's personal circumstances, other than his good work ethic and the seeds of hope that he was now committed to address his problems.

27 The sentencing judge found that some of the pleas of guilty were made at the earliest opportunity. Further, she found that a 25% discount should be given in all matters given the significant benefit to the victim in not having to give evidence.

28 The sentencing judge made some observations about the serious nature of domestic violence. Given the nature of the appellant's ground of appeal, it is unnecessary to outline those observations.

29 Her Honour concluded that only a term of immediate imprisonment was appropriate. Totality loomed large in determining the length of sentences. It was important to take into account the nature of the offending and the aggravating features that it had, the persistence of the offending, the need for specific and general deterrence, and the protection of the community. Her Honour imposed the following sentences:

- attempt to pervert the course of justice: 12 months' imprisonment;

- aggravated assault occasioning bodily harm in 2014: 2 years' imprisonment;

- three of the aggravated common assaults of 2014: 3 months' imprisonment on each count;

- two of the aggravated common assaults in 2014: 6 months' imprisonment;

- possession of drug paraphernalia: 1 month on each charge;

- the charge of aggravated assault occasioning bodily harm in 2015: 12 months' imprisonment.

30 In determining the appropriate total effective sentence, the sentencing judge referred to the fact that the offending took place on three separate occasions. Each occasion was sustained and involved different kinds of breaches of the law. Those circumstances called for some accumulation.

31 Her Honour determined that the sentence on the attempt to pervert the course of justice and the two offences of aggravated assault occasioning bodily harm be served cumulative with each other, but concurrently with all of the other sentences.[2]

32 That gave a total effective sentence of 4 years' imprisonment.

33 The appellant appeals against his conviction on the grounds that a miscarriage of justice occurred due to the appellant wrongly pleading guilty.

Appeal against conviction after a plea of guilty: general principles

34 It is not an easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. To succeed, the appellant must show there has been a miscarriage of justice. In that respect, it is not enough for the appellant to demonstrate, on appeal, that he or she was innocent of the charge to which the plea of guilty was entered.[3] A person may plead guilty for a range of reasons extending beyond belief in guilt, for example to avoid worry, inconvenience or expense, to protect someone else, or in the hope of receiving a more lenient sentence than would follow from a conviction after trial.[4]

35 The circumstances which will amount to a miscarriage of justice cannot be exhaustively listed, and the categories are not closed. There are three well recognised categories of cases in which appellate courts have been prepared to set aside pleas of guilty. They are:

(1) where the appellant did not understand the nature of the charge or did not intend to admit guilt;

(2) if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or

(3) where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.[5]

Disposition of the appeal against conviction

36 The appellant submits that on 3 June 2016 he pleaded guilty to assault charges beyond those of which he was guilty of in relation to events occurring on 27 December 2014 and 14 July 2015. Nothing more is said in the written submissions to support this assertion. In oral submissions the appellant asserted that of the offences said to have occurred on 27 December 2014, he was guilty of one offence - assault occasioning bodily harm. He said in respect of the charged conduct on 14 July 2015, he was guilty of common assault only and not assault occasioning bodily harm. He further asserted that the facts stated before the magistrate were not correct, and that he had pleaded guilty in desperation because he was concerned and 'stressing' about when he would be able to see his newborn son.[6] Those assertions are not supported by any evidence. In any event, even if they were, the principles we have stated mean that the asserted circumstances do not demonstrate a miscarriage of justice.

37 Moreover, consideration of the circumstances of the hearing at which the plea was entered militate against a conclusion that the appellant's conviction following his plea of guilty gives rise to any miscarriage of justice. The appellant pleaded guilty to these offences in the District Court on 3 June 2016. The appellant was represented by a legal practitioner when he appeared on 3 June 2016. It is evident from the submissions his counsel made to the sentencing judge that counsel was retained by the appellant for many months prior to the hearing in June 2016. Moreover, as counsel's written submissions to the sentencing judge said, the appellant had pleaded guilty to the 10 matters the subject of the s 32 notice in the Magistrates Court on 25 January 2016.

38 For these reasons, there is no merit in the appeal against conviction. We would decline to grant leave to appeal.

39 The appellant appeals against sentence on the ground that the individual sentences imposed on him were manifestly excessive, and the total sentence imposed was disproportionate to the total criminality in light of the circumstances of the offending, the personal circumstances of the appellant and the sentencing standards.

Appeal against sentence: general principles

40 Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied 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.

41 The principles relevant to an appeal on grounds of totality were stated in Roffey v The State of Western Australia.[7] The totality principle has two limbs, the first of which is relevant to this appeal. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences.

42 Where, as here, there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive.[8]

43 The appellant's written and oral submissions were directed to the complaint that the total effective sentence of 4 years breached the totality principle.

44 For the reasons that follow, in our opinion the appellant's complaint that the total effective sentence of 4 years infringed the first limb of the totality principle has no reasonable prospect of succeeding. To the contrary, the sentence imposed was a proper reflection of the appellant's overall criminality, having regard to the circumstances of the case and his personal circumstances.

45 The maximum penalties for the offences were: 7 years for the attempt to pervert the course of justice; 7 years for the aggravated assaults occasioning bodily harm; 3 years for the aggravated common assaults and the possession of drug paraphernalia; and 2 years for the possession of cannabis.

46 On 27 December 2014, the appellant engaged in a sustained attack on the complainant that caused her to lose consciousness. In the course of the attack, the appellant struck her head and body, assaulted her in other ways, and then applied force to her throat so as to cause her to lose consciousness. Moreover, the complainant was pregnant with their child at the time of the attack, rendering her even more vulnerable than usual.

47 The appellant's assault of the complainant on 14 July 2015 was also serious and sustained. It lasted 20 minutes, during which he struck the complainant several times to her face and body. He committed this offence while he was on bail for the earlier offences, and in breach of the conditions of bail.

48 We repeat the following observations of Mitchell J about the significance of an assault occurring in a domestic setting:[9]

The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.

49 We agree with the sentencing judge's characterisation of the appellant's offence of attempting to pervert the course of justice as mid-range. The appellant sought to induce the complainant, a person over whom he evidently had a degree of power, to make a false declaration that she had falsely accused him of the offences he had committed, in order to mislead the court. He further sought that she would reiterate this falsehood to the court. The appellant's offence was not a momentary aberration. There was a degree of planning in that he wrote a detailed note of what he wanted the complainant to sign. Moreover, it came after a series of telephone conversations in which the appellant made repeated attempts to cajole the complainant into withdrawing her complaint.

50 It has often been said that offences of attempting to pervert the course of justice strike at the heart of the criminal justice system, and that general deterrence will almost invariably be a significant factor for such offences.[10] In considering whether the total effective sentence infringed the totality principle, it should be borne in mind that ordinarily a sentence of imprisonment for an offence of attempting to pervert the course of justice should be wholly cumulative with the sentence for the offence to which the attempt was directed.[11]

51 In support of his assertion that the total sentence was disproportionate to the total criminality, the appellant refers to three decisions on appeals from magistrates' decisions.[12] Three decisions does not establish a range of sentences customarily imposed. In any event, the utility of comparable cases in determining questions of totality is often limited to providing some broad guidance, because there will often be significant differences in the circumstances of the offending and the offenders.[13] For example, there will often be a different mix of offences, rendering the comparison of limited utility.[14] That applies in this case.

52 The sentencing judge carefully considered questions of totality. For the reasons already given, it was appropriate that the sentence for attempting to pervert the course of justice was cumulative on the first offence of assault occasioning bodily harm. Her Honour pointed out, correctly, that the appellant's offending involved three distinct episodes, spread over a period of about nine months. In light of the appellant's criminal history and the reports before the primary judge, her Honour rightly emphasised the need for specific as well as general deterrence. The disturbing parallels between the offence of aggravated assault occasioning bodily harm for which the appellant was sentenced on 23 January 2013 and the offences he committed on 27 December 2014 made the need for personal deterrence a significant consideration in sentencing the appellant. Given that the second offence occurred six months after the first set of assaults while the appellant was on bail, and given the serious nature of the second offence of assault occasioning bodily harm, it was well open to the sentencing judge to determine that a sentence of 12 months should be served cumulatively on the other sentences, and that a total effective sentence of 4 years was appropriate.

53 For these reasons, in our view, there is no merit in the appeal. The sole ground of appeal has no reasonable prospects of succeeding. We would refuse leave to appeal.

[1] The following outline is taken from the sentencing remarks of the primary judge, and reflects the facts stated by the prosecutor before her Honour.

[3] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141, 157; Vella v The State of Western Australia [2006] WASCA 129 [29].

[4] Meissner (157); Nelson v Haynes [2003] WASCA 7; (2003) 27 WAR 154 [55].

[5] Borsa v The Queen [2003] WASCA 254 [20]; Vella [26]; Glossop v The State of Western Australia [2013] WASCA 64 [7].

[7] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

[8] Giglia v The State of Western Australia [2010] WASCA 9 [40].

[9] Bropho v Hall [2015] WASC 50 [16].

[10] Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337.

[11] Dudzik v The State of Western Australia [2012] WASCA 195 [30].

[12] Messiha v Plaucs [2012] WASC 63; Morgan v Kazandzis [2010] WASC 377 and Brown v Bluett [2013] WASC 189.

[13] Chadd v The State of Western Australia [2013] WASCA 99 [45].

[14] See, for example, Winmar v The State of Western Australia [2016] WASCA 184 [31].