Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Aggravated grievous bodily harm - State appeal against sentence - Whether suspended imprisonment order manifestly inadequate

Criminal Appeals Act 2004 (WA), s 31(4)

Sentencing Act 1995 (WA), s 6(4), s 9AA, s 39(3)

Respondent : Stephen R McGrath Barrister & Solicitor

Boyle v The State of Western Australia [2010] WASCA 97

Brown v The State of Western Australia [2009] WASCA 74

Bruno v The State of Western Australia [2005] WASCA 149

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

CMB v Attorney General (New South Wales) [2015] HCA 9; (2015) 89 ALJR 407

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

Etrelezis v The Queen [2001] WASCA 327

Fenton v The State of Western Australia [2015] WASCA 255

Field v The State of Western Australia [2013] WASCA 209

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

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

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

The State of Western Australia v Camilleri [2008] WASCA 217; (2008) A Crim R 394

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

The State of Western Australia v Malone [2015] WASCA 188

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

Trompler v The State of Western Australia [2008] WASCA 265

1 McLURE P: I agree with the orders proposed by Mazza JA generally for the reasons he gives. Children are often the innocent and unfortunate victims of parents who abuse prohibited (and other) drugs. It is not uncommon for grandparents to step in and take physical custody and care of grandchildren at risk. The carers need to be protected from aggression directed at them in connection with the performance of their care function. The physical violence inflicted by the appellant on the victim occurred in this context. The consequences for the victim have been life-changing. Deterrence is the weightiest sentencing consideration. The only appropriate sentencing option is a term of immediate imprisonment.

3 MAZZA JA: This is a State appeal against sentence. On 23 March 2015, the respondent was convicted in the District Court on his plea of guilty of one count of aggravated grievous bodily harm contrary to s 297(3) of the Criminal Code (WA). The circumstance of aggravation was that the victim, Ms Pamela Keenan, was of or over the age of 60 years. The grievous bodily harm she suffered was a fracture of the intracapsular subcapital neck of the femur, which necessitated a total hip replacement.

4 On 9 September 2015, Goetze DCJ conducted a trial of issues to determine some of the circumstances of the offending. On 11 September 2015, his Honour delivered his findings on the trial of issues and proceeded to sentence the respondent. The respondent was sentenced to 18 months' imprisonment, suspended on conditions for 18 months. His Honour also made a permanent violence restraining order pursuant to s 63A of the Restraining Orders Act 1997 (WA).

5 The sole ground of appeal is that the sentence is manifestly inadequate. Leave to appeal has been granted. Although senior counsel for the State characterised the length of the term of imprisonment as 'very lenient', no challenge was ultimately made to it (appeal ts 2). Rather, the challenge is to the suspension of the sentence. The State says that the only appropriate outcome was an immediate term of imprisonment.

6 At the relevant time, the respondent was 25 years of age and weighed approximately 80 kg. The victim was 62 years of age and weighed approximately 60 kg.

7 On 8 September 2013, the date of the offence, the respondent was in a relationship with the victim's daughter, Ms Claire Doonan.

8 Ms Doonan has a son, A, who was, at the time, 8 years old. Ms Doonan had a drug problem and was unable to care for A on a full-time basis. With Ms Doonan's consent, A was in the 'unofficial custody' of the victim (ts 34, 223). On the afternoon of 8 September 2013, Ms Doonan and the respondent were shopping in Midland. Ms Doonan telephoned the victim and told her that she was coming to collect A from her. No prior arrangement to this effect had been made. The victim told Ms Doonan that A was to stay with her. The respondent, angered by the victim's reaction to Ms Doonan's request, took the telephone and told the victim that, nevertheless, he and Ms Doonan intended to pick A up.

9 The respondent and Ms Doonan immediately drove to the victim's home. He entered the home in an angry and hostile mood. The respondent rushed towards the victim saying 'Get out the fucking way, you bitch. We're fucking coming in to get him' (ts 69 - 70). As he did so, the victim put up her left hand in a 'stop' gesture, indicating that the respondent was not to come any further towards her (ts 70). The respondent ignored that gesture. He grabbed each of the victim's upper arms in the region of her biceps and triceps. He did so with such force that bruises were later observed in those regions of her body. He then propelled the victim backwards with sufficient force that her feet left the floor. She then fell to the floor, landing on her backside and right elbow. The impact of the fall caused the fracture that I mentioned earlier.

10 The victim was admitted to Royal Perth Hospital that day. On 9 September 2013, she underwent a total hip replacement. The serious effects of her injury were described in a victim impact statement dated 30 March 2015.

11 The respondent pleaded guilty approximately two months prior to the commencement of his trial. He did so after receiving a report written by the orthopaedic registrar who treated the victim, Dr Piet Rogers. That report set out the victim's injuries and confirmed that they constituted grievous bodily harm.

12 The trial of issues to which I have already referred was held to resolve several matters of mitigation which the State disputed, being whether:

(a) the victim had squeezed the respondent's neck before he grabbed her by the arms;

(b) the respondent had taken hold of the victim's arms and effectively thrown her backwards, or whether he had instinctively pushed her in the chest in self-defence; and

(c) the victim had earlier on 8 September 2013 telephoned Ms Doonan and requested that she collect A from her home.

13 All of these contested issues were resolved by his Honour against the respondent. In other words, his Honour found that the victim had not squeezed the respondent's neck; the respondent effectively threw her backwards; and the victim did not telephone Ms Doonan and make the alleged request.

14 The respondent was, at the date of sentence, 27 years of age. His family history, as revealed in the pre-sentence report, was somewhat unsettled. He left school at year 10 and has lived independently since he was 17 years old. He has a steady history of employment. He is a qualified baker and pastry cook and is currently employed on a full-time basis in that capacity.

15 The respondent has a long history of alcohol and illicit drug abuse. At the time of the offence, he and Ms Doonan were in a 'dysfunctional' relationship (pre-sentence report 2) and were both regularly using cannabis.

16 After the offence, the relationship between the respondent and Ms Doonan ceased. The respondent has since entered into a new relationship. He and his new partner have a very young baby. His Honour, in substance, found that the respondent has changed his lifestyle for the better since the commission of the offence. This included the respondent ceasing his use of illicit drugs as well as his association with those with whom he had used drugs in the past.

17 The respondent has a brief criminal history comprising traffic and minor drug offences. He has no prior convictions for offences involving violence and has never been imprisoned. Material before his Honour revealed that two of the respondent's former partners were granted violence restraining orders against him.

18 Character references tendered on behalf of the respondent from his past and present employers spoke well of his work ethic and personal qualities. A letter from his parents confirmed their support for him and the positive changes he had made in his life since the commission of the offence. Shortly before he was sentenced, the respondent wrote a letter of apology to the victim.

19 The offence has had serious consequences for the victim.

20 Prior to the offence she described herself as a 'joyful, quiet person, young for [her] age, who enjoyed walking, shopping' etc.

21 The victim described her present state in these terms:

Now I am like a [sic] old woman, old before my time, easily getting tired, waddling along as I walk with [a] limp now, not being able to ride my bike, or walk for long, do much shopping as I cannot carry it or walk too far, cannot sit for very long as I have to put my leg up to ease the pain. I have been in horrific pain since the assault only the past few weeks is it starting to subside, but if I turn or get up too quickly it is very painful. Even sleeping is painful I have not had a full nights [sic] sleep since the operation turning onto my side the pain wakes me up.

22 The victim also described other adverse consequences to her everyday life, including the loss of her independence. As a result of her injury, she moved in with her eldest daughter for care and support. After a year, she moved in with her youngest daughter 'because I still need support and [I am] worried about living on my own again'.

23 In addition to her physical deterioration, the victim described her personality as having changed for the worse.

24 His Honour identified the following mitigating factors (ts 222 - 223):

(a) The plea of guilty, for which a 10% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) was given.

(b) The respondent's remorse, as manifested in the plea of guilty and the letter of apology.

(c) The respondent's rehabilitation, as reflected by what his Honour regarded as positive changes to his lifestyle.

(e) The absence of a prior criminal history for violence, and no further offending since the commission of the offence.

25 His Honour analysed the seriousness of the offence having regard to the factors referred to by Wheeler JA in Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11], being the nature of the harm inflicted upon the victim; the nature of the act which caused the injury; and the background to, and circumstances of, the offence (the Trompler factors).

26 As to the first factor, his Honour noted that the victim's fractured femur and consequent total hip replacement had resulted in permanent changes to her lifestyle and affected her day-to-day living (ts 223).

Now, this was a single act, but it was a deliberate act. It wasn't sudden, it wasn't a spontaneous brain snap as [the prosecutor] pointed out. This carried on from a situation when you were in Midland, when you were angry, and then you maintained that anger from speaking [to the victim] on the phone and then fronting up at her house.

The act that you committed was totally unnecessary. You thrust her backwards with sufficient force to lift her feet off the ground, as I've already mentioned, and to cause her to fracture her femur when she struck the ground. So it's certainly - while I can't say how significant the force was, it was not insignificant force that did this (ts 223).

[T]he victim here had unofficial custody of [Ms Doonan's] son, by reason of problems that [Ms Doonan] had herself. That made the relationship difficult. You were fond of A. But there was no provocation by the victim here for you to act in the way that you did. She tried to prevent you from entering the house, as she's entitled to. You didn't need to use any force at all. She was caring for A and you should have been more respectful of her situation (ts 223).

29 It is clear from a reading of the sentencing remarks that his Honour was favourably impressed by what he plainly regarded to be the respondent's positive steps towards his rehabilitation. According to his Honour, whether the respondent was to serve an immediate or suspended term of imprisonment was a matter of weighing '[the respondent's] ongoing rehabilitation versus the need for retribution' (ts 224, 226). It is obvious from this statement and the type of sentence ultimately imposed that his Honour regarded rehabilitation as being decisive. He said the decision to suspend was made 'by the narrowest of a hair's margin' (ts 226).

The submissions to this court State's submissions

30 The State submitted that the offence was a serious one of its kind, emphasising the mental and physical harm caused to the victim; the nature of the assault, in particular the disparity in ages and size between the respondent and the victim; and the circumstances of the offence, namely:

(a) the respondent attended at the victim's house in an angry and aggressive mood;

(b) the respondent sought out the confrontation without any provocation from the victim;

(c) the respondent was told to leave by the victim but refused to do so;

(d) the victim acted to protect the welfare of A, for whom she was caring;

(e) the victim was a physically small 62-year-old female who was vulnerable compared to the respondent who, at the time, was a heavyset and stronger 25-year-old male; and

(f) the respondent grabbed the victim's arms and forced her backward with sufficient force that her feet left the ground.

31 The State submitted that there was nothing in the respondent's personal circumstances to justify leniency. It was said that little weight should have been given to the respondent's rehabilitation and remorse. With respect to remorse, senior counsel for the State submitted that the respondent's case on the trial of issues undercut any notion of true remorse.

32 The State submitted that this court's intervention was required to maintain proper standards of sentencing for offences of the kind committed by the respondent.

33 Counsel for the respondent also addressed the Trompler factors. It was submitted on behalf of the respondent that the injury suffered by the victim was 'on the lower end of the scale' (respondent's submissions par 47). While conceding that the fracture was a permanent injury, it was submitted that the injury '[could] be accommodated by [the victim] and [was] not a serious permanent disability' (respondent's submissions par 49). As to the nature of the act which gave rise to the injury, it was emphasised on behalf of the respondent that the resultant injury was caused by a single, rather than a continuous or repeated violent, act.

34 With respect to the background and circumstances of the offence, it was submitted that:

(a) the respondent was feeling unwell on the day of the offence;

(b) the respondent only went to the victim's home because Ms Doonan had no driver's licence;

(c) the respondent did not go there to hurt the victim; and

(d) the offence was committed 'as a spur of the moment action' which was 'not premeditated' (respondent's submissions par 57).

35 The respondent submitted that, having regard to his criminality and the mitigating circumstances identified by his Honour, the imposition of a conditional suspended imprisonment order was within the bounds of a proper exercise of the sentencing discretion.

36 Imprisonment, whether suspended or not, is a sentence of last resort: s 6(4) of the Sentencing Act. A term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate: s 39(3) of the Sentencing Act. However, as was said in Cartwright v The State of Western Australia [2010] WASCA 4 [9] (McLure P), and in many cases since, the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range.

37 A claim of manifest inadequacy is an allegation of implied error. The ground of appeal cannot succeed unless the State demonstrates that the sentence imposed by his Honour was unreasonable or plainly unjust. To determine whether a sentence is manifestly inadequate, regard is had to the maximum sentence prescribed for the offence (in this case, 14 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender.

38 The range of sentences customarily imposed provides a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency in outcomes. However, it does not mark the boundaries within which the sentencing discretion is to be exercised. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Fenton v The State of Western Australia [2015] WASCA 255 [17] (McLure P).

39 In the absence of a sufficient number of comparable appellate cases dealing with individual sentences for offences contrary to s 297(3) of the Criminal Code,[1] the parties cited sentencing cases with respect to the offences of unlawfully doing grievous bodily harm contrary to s 297(1) of the Criminal Code, an offence which carries the lower maximum penalty of 10 years' imprisonment, including Etrelezis v The Queen [2001] WASCA 327; Bruno v The State of Western Australia [2005] WASCA 149; The State of Western Australia v Camilleri [2008] WASCA 217; (2008) A Crim R 394; Trompler; Brown v The State of Western Australia [2009] WASCA 74; Mercanti v The State of Western Australia [2009] WASCA 109; Boyle v The State of Western Australia [2010] WASCA 97; Hobby v The State of Western Australia [2011] WASCA 197; Holden v The State of Western Australia [2011] WASCA 238; Djiagween v The State of Western Australia [2012] WASCA 141; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 and Field v The State of Western Australia [2013] WASCA 209.

40 The general range of sentences for offences contrary to s 297(1) of the Criminal Code is between 8 months to 5 years 4 months' immediate imprisonment, with cases falling to the upper end of the range attracting sentences in the order of 3 to 5 years' imprisonment: see Trompler [38]; Mercanti [35] (Miller JA); Hobby [23] (Buss JA) and Taylor [36] - [39] (Buss JA).

41 There have been cases where a non-immediate custodial penalty has been imposed for an offence contrary to s 297(1) of the Criminal Code. Two examples to which the parties referred in their written submissions are Etrelezis and Boyle. In each of these cases, terms of immediate imprisonment imposed at first instance were set aside on appeal and substituted with a suspended imprisonment order. It is unnecessary to canvass the facts of these cases, save to say that each had unusual circumstances absent from the present case, most significantly that each of the victims behaved in a manner which, to some extent, provoked the act which caused the grievous bodily harm.

42 Of course, in considering the comparable cases, it must be borne in mind that the respondent committed an offence contrary to s 297(3) of the Criminal Code, an offence which carries a higher maximum penalty than an offence contrary to s 297(1).

43 The following principles may be distilled from the sentencing cases:

(a) the primary sentencing consideration for offences where grievous bodily harm is done is personal and general deterrence;

(c) as a matter of fact, the ordinary disposition is a term of immediate imprisonment.

44 This case involved an entirely unprovoked attack upon a vulnerable victim in her own home. The respondent went there in an angry and aggressive mood. He was much younger and stronger than the victim. He swore at her, plainly to intimidate her. The victim then gestured to the respondent to stop coming towards her. Not only did he ignore her, he grabbed the victim firmly by the upper arms and forcefully propelled her backwards so that her feet left the ground. The backwards motion was more than a mere shove or a push. It was, in effect, a throw. Unsurprisingly, the victim fell heavily to the floor. While the respondent did not intend to cause grievous bodily harm to the victim, throwing a 62-year-old person heavily to the floor runs the obvious risk of serious physical injury. That risk eventuated here.

45 The injury the victim suffered was severe by any measure. The effects have had a pervasive and negative impact upon her life and will continue to do so in the future.

46 A seriously aggravating aspect of the respondent's offending is that he violently assaulted the victim at the time she was, in effect, discharging parental responsibilities towards A and acting to prevent him from being taken away by persons who were unable to properly care for him. The use of violence with the aim of removing a child in such circumstances evinces serious criminality.

47 Further, the clear legislative purpose of setting a higher maximum penalty for doing grievous bodily harm to victims of or over the age of 60 years is to protect persons who, due to their age, are more vulnerable to harm by physical attack and less able to defend themselves.

48 The State did not challenge his Honour's findings that the respondent had taken positive steps towards his rehabilitation and was remorseful. However, the extent to which they could afford mitigation was diminished by the stance the respondent took in the trial of issues, which sought to downplay his criminality and place some of the blame on the victim. In any event, as I said earlier, the dominant sentencing consideration in cases such as this is personal and general deterrence. The mitigating factors identified by the learned sentencing judge did not permit the imposition of a suspended term of imprisonment on conditions. Having taken into account all of the relevant sentencing factors, the imposition of a suspended imprisonment order on conditions was, in my opinion, unreasonable or plainly unjust. With great respect to his Honour, the only appropriate sentence was for the respondent to serve a term of immediate imprisonment. The ground of appeal has been made out. The sentence was manifestly inadequate.

49 No submission was made on behalf of the respondent that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. Of course, the respondent does not bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent upon the State to negate any reason why the residual discretion of this court not to interfere should be exercised: CMB v Attorney General (New South Wales) [2015] HCA 9; (2015) 89 ALJR 407 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ). See also The State of Western Australia v Malone [2015] WASCA 188 [88] (Buss JA).

50 There is no basis for invoking the residual discretion in this case. In its written submissions before the learned sentencing judge, the State submitted that the only appropriate sentence was a term of immediate imprisonment. That three months has elapsed since the imposition of the suspended imprisonment order is not a sufficient reason to exercise the discretion. The ground of appeal has been very clearly established and this court's intervention is necessary to ensure the preservation of proper sentencing standards for offences of the kind committed by the respondent.

51 The court has all of the material necessary to resentence the respondent. As I said at the outset of these reasons, the State does not seek to disturb the length of the sentence originally imposed. Having regard to:

(b) the circumstances in which the offence was committed; and

(c) all other relevant circumstances, including those personal to the respondent and his plea of guilty (for which I would, as the learned sentencing judge did, give a discount of 10% pursuant to s 9AA of the Sentencing Act),

a sentence of 18 months' imprisonment could be said to be lenient. However, having regard to the State's position, I would impose a sentence of 18 months' immediate imprisonment. The respondent should be made eligible for parole. He will be eligible to be considered for release on parole when he has served 9 months of that term.

52 The ground of appeal has been made out and the appeal must be allowed. I would make the following orders:

1. Appeal allowed.
2. The sentence imposed by Goetze DCJ on 11 September 2015 is set aside.
3. In lieu thereof, the respondent is sentenced to 18 months' immediate imprisonment with eligibility for parole.

[1] The only such case being The State of Western Australia v Jeffries [2007] WASCA 255.