Court of Appeal (WA)|2009-11-06|Before: Wheeler JA

HUSSAINI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 207 (6 November 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HUSSAINI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 207

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Applications for extension of time within which to appeal refused

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

Clements v The State of Western Australia [2006] WASCA 69

Hayes v The Queen [2003] WASCA 230

Minniti v The Queen [2001] WASCA 148

R v Hodges [1999] WASCA 278

Ronan v The Queen (Unreported, WASCA, Library No 970073, 28 February 1997)

Stanik v The Queen [2001] WASCA 333

Stevenson v The Queen (Unreported, WASCA, Library No 960155, 22 March 1996)

The State of Western Australia v Camilleri [2008] WASCA 217

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

1 This is an application for leave to appeal against conviction.

2 In relation to the appeal against conviction, the appeal notice is filed two months out of time. The explanation for delay which is presently on the court file is inadequate leaving six weeks approximately unaccounted for. It was the understanding of the counsel who appeared before me that a further document either was or should have been filed which added to that explanation.

3 It is not necessary, however, to consider the question of delay further because in my view the two proposed grounds of appeal have no reasonable prospect of success. Each appeal raises a question of law.

4 Ground 1 has at its heart an assertion that the learned trial judge misdirected the jury as to the requirements of the second limb of s 248 of the Criminal Code as it then stood, when he directed the jury in the following terms:

The next matter is that the nature of the assault upon the accused must be such as to cause him reasonable apprehension of his death or grievous bodily harm to him.

That reasonable apprehension is to be judged objectively according to the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to the accused at the relevant time. (ts 257)

5 The reason for suggesting the direction is in error is that it does not use the precise words used by Murray J (with whom Malcolm CJ agreed) in the case in Minniti v The Queen [2001] WASCA 148 at [59]. The first thing to note about Minniti is that it is not a case concerned with the question "reasonable apprehension" of death or grievous bodily harm; rather, it was a case which was concerned with what was the proper direction in relation to the portion of s 248 providing that it was lawful for a person to use "such force ... as is necessary for defence". It is hardly to be expected, in that context, that the court would be concerned with prescribing some form of words which must invariably be used in relation to reasonable apprehension of death or grievous bodily harm, and I do not understand Murray J as having attempted that task. The submissions do not point to any authority, and I am not aware of any, suggesting that some particular form of words must invariably be used in relation to that concept. I would add that there is authority for the proposition that it is best to conform as closely as possible to the words of the Criminal Code itself, unless they are of such a technical nature as to be likely to give rise to difficulty or misunderstanding, but that is a different issue.

6 In the present case, it is asserted that the learned trial judge erred in referring to a "reasonable person", since Murray J in Minniti expressly referred to death or grievous bodily harm judged objectively "from his or her [that is, the accused's] point of view". There is no analysis in the submissions of what this qualification would have added to the qualification which the learned trial judge did include in his direction to the effect that the reasonable person had the same background and intellectual functioning as the accused and was familiar with all the circumstances known to the accused. As I understand it, the words used by Murray J in Minniti "from his or her point of view" do no more than reinforce that it is necessary to look at the question of reasonable apprehension in the light of the characteristics (including such matters as particular physical vulnerabilities) and knowledge of the accused person. If, as the appellant's counsel appears to assert, the words "from his or her point of view" were intended to introduce some element of reference to the actual subjective belief of the appellant, then that would be inconsistent with the requirement that the apprehension be a "reasonable" one which is to be judged objectively.

7 In short, the difficulty with ground 1 is that it takes out of context a few words from a case not directly concerned with the issue which lies at the heart of ground 1, and elevates them to a prescribed form of words departure from which will be a misdirection. This ground does not have a reasonable prospect of success.

8 This ground displays a want of logic. It is concerned with the defence of accident under s 23 of the Criminal Code as it stood at the relevant time. The direction with which issue is taken is adequately represented by this passage:

The state would have to prove to you that this [the injuries to the victim] did not occur by accident; that is, that it was intended by the accused, that it was foreseen by him, that is, the injuries were foreseeable that if you swing tree loppers at someone, then injuries of this kind can be foreseen and it must have been foreseen by the accused, or that it would be reasonably foreseen by a person in the accused's position. (Emphasis supplied by appellant's submissions)

9 The submission in ground 2 is that his Honour should have used the word "and" rather than "or". It is submitted that his Honour should have directed the jury that the appellant would be culpable only if the injuries were "intended by the Appellant or it was foreseen by him and it was foreseeable to an ordinary person in the appellant's position" (emphasis in appellant's submissions).

10 A considerable number of cases are referred to. To the extent that they deal with the relevant subject matter, they are all in conformity with the propositions clearly enunciated by Malcolm CJ and Anderson J in the case of Stanik v The Queen [2001] WASCA 333 at [37] and [83]. It is convenient simply to quote from the latter passage, in which Anderson J said:

An event will not therefore be an accident unless two requirements are met. Firstly, the event must not be intended or foreseen by the accused. That is the subjective element. Secondly, the event must be one which would not reasonably have been foreseen by an ordinary person. That is the objective element.

11 As a matter of logic, it follows from what his Honour said that the State can disprove accident if it proves either that, subjectively, the accused intended or foresaw the event, or if it proves, objectively, that the event would reasonably have been foreseen by an ordinary person.

12 The appellant's submissions would be correct only if Stanik were authority for the proposition that an event would be an accident if any of the relevant requirements were met; that is, if it were authority for the proposition that either the subjective element or the objective element alone would be sufficient to satisfy the definition of an accident. If that were so, then the State would have to disprove both the subjective and the objective elements in order to disprove accident. However, the authority cited by the appellant stands for precisely the opposite proposition. His Honour's direction was entirely consistent with authority. This ground has no reasonable prospect of success.

13 Since the delay is unexplained, and there is no merit in either of the proposed grounds, I would refuse the extension of time. Had I allowed the extension of time, I would, in any event, have dismissed the appeal.

14 This is an application for leave to appeal against sentence. It is out of time by approximately a month. Although there is no affidavit in support, by statutory declaration, the appellant has declared that the delay is explicable on the basis that he did not "fully understand the legal processes involved". Although the explanation is unclear, the delay is relatively short and, if the ground of appeal had merit, I would have granted an extension of time. However, it does not.

15 The facts of the offence broadly were that in the early morning in the middle of winter, the appellant had been with others in a van travelling from a caravan park in Dunsborough to their place of work. The trip took about an hour. There had been an argument of some kind about smoking in the vehicle. It appears that the appellant did not like the smell of smoke. It is not clear precisely who had been smoking or when, but the appellant had opened the window as a result of his dislike of the smell in the car. Others complained about the cold. The argument continued once they had arrived at their place of work. The appellant had walked away from the argument and had sharpened the blades of a tree lopper with which he was to work. He returned, and the argument continued. Although the learned sentencing judge made no exact finding about the degree of physical contact, it seems there had been some physical contact between the appellant and the complainant, and it seems to have been of a very minor kind.

16 The appellant then struck the complainant with a pair of tree loppers. They were about 40 cm in length. They were tendered at the trial, so that the learned sentencing judge had the opportunity to see them. The blade pierced the complainant's left side, rupturing the diaphragm and lacerating the spleen. The medical evidence was that there must have been 5 cm of blade inserted into the body in order for that to occur. When the complainant fell to the ground following that blow, the appellant kicked him in the head, by the left eye.

17 The complainant, of course, required surgery. What his long-term prognosis was was not entirely clear. However, he had suffered diarrhoea since the incident and remained at the time of trial on a restricted diet. He had lost a lot of weight, and was struggling to rebuild the strength necessary for work and exercise. The emotional impact had been significant.

18 So far as his personal circumstances were concerned, the appellant was 30 years of age and had no record. His Honour found that the appellant had, however, shown no remorse.

19 The sole ground of appeal is that his Honour erred in imposing a sentence that was manifestly excessive having regard to the alleged particulars that the offence was not premeditated and that there was provocation of the appellant and having regard to the personal circumstances of no history of prior violent offences and the appellant's age.

20 So far as the first particular was concerned, it may be that the offence was not premeditated, in the sense that the appellant had not positively decided to use the tree loppers at a time prior to the striking of the blow. His Honour made no finding of premeditation. However, his Honour did note that the appellant had walked away from the argument, and had decided to rejoin it shortly prior to the blow. So far as provocation was concerned, there was no finding by his Honour of any relevant provocation. The most that the facts appeared to establish was that the complainant may have spoken to the appellant in an offensive way during the course of a relatively lengthy argument about a trivial matter, the precise circumstances of which could not be ascertained.

21 So far as the relevant standards of sentencing are concerned, the appellant's submissions appear to rely upon the "broad range" (post-transitional) of sentences for offences of this kind mentioned by McLure JA in Trompler v The State of Western Australia [2008] WASCA 265 of 8 months up to 5 years 4 months. The sentence actually imposed upon the appellant was 2 years' imprisonment with parole eligibility. That sentence is plainly well within the broad range identified by her Honour. Further, the cases to which her Honour referred were all cases in which a plea of guilty had been entered. See The State of Western Australia v Camilleri [2008] WASCA 217, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230, Clements v The State of Western Australia [2006] WASCA 69.

22 It is difficult to see how the appellant can complain of a sentence of imprisonment of 2 years with parole eligibility imposed upon him after trial, in circumstances where he asserts that the range of sentences imposed upon those who have pleaded guilty, and who are therefore entitled to a discount for that reason, is from 8 months to 5 years and 4 months. On its face, the sentence imposed upon him not only falls within the range, but falls towards the lower end of a range which would be considered appropriate following a trial.

23 Further, a number of the cases upon which the appellant relies, as being committed in circumstances more serious than the circumstances of the present offending, yet resulting in similar terms of imprisonment, are properly to be regarded as involving very similar offending and being appropriately comparable. See, for example, Ronan v The Queen (Unreported, WASCA, Library No 970073, 28 February 1997), Stevenson v The Queen (Unreported, WASCA, Library No 960155, 22 March 1996) and Clements. Further, in Trompler, a case upon which the appellant apparently relies, I noted (at [9] - [11]) that there are broadly three factors which are relevant to characterising the seriousness of an offence of grievous bodily harm, in the majority of cases. The first is the nature of the harm, the second is the nature of the act which gives rise to the harm, and the third is the circumstances giving rise to the offending. So far as the nature of the harm is concerned, as the appellant's counsel points out, it is in the present case not in the most serious category, in the sense that it has not given rise to the most serious kind of long-term disability. So far as the nature of the act was concerned, although there was no finding of premeditation, and although there was not the sustained violence that one often sees in such cases, there was nevertheless the deliberate use of a weapon, followed by a gratuitous kick to the head. Finally, the offence occurred in circumstances where the appellant, having walked away from an argument, decided to return in order to continue it, and where there was no threat to him posed by the complainant and where the provocation, if any, offered by the complainant had been of the most trivial kind. In those circumstances, and having regard to his Honour's finding that the appellant showed no remorse, it would not have been appropriate for his Honour to have imposed a sentence that was towards the bottom of the range of sentences generally imposed, as the appellant submits. The sentence imposed was within an appropriate range, and was proportionate to the gravity of the offence, having regard to the circumstances of the offender.

24 Had I granted an extension of time, I would have refused leave on the basis that the appeal has no reasonable prospects of success and dismiss the appeal. However, having regard to the inadequate nature of the explanation for delay, I would simply refuse leave to extend time.

Bruno v The State of Western Australia

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Judgment (42 paragraphs)

HUSSAINI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 207 (6 November 2009)

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