Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence appeal - Unlawfully doing grievous bodily harm by biting off the victim's thumb - Assault entirely unprovoked - Senseless act of violence - Whether sentence of 3 years' imprisonment manifestly excessive - Whether finding of lack of remorse in error

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

Chan v The Queen (1989) 38 A Crim R 337

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

Collins v The State of Western Australia [2007] WASCA 108

Etrelezis v The State of Western Australia [2001] WASCA 327

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

Steel v The State of Western Australia [2010] WASCA 118

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

Vagh v The State of Western Australia [2007] WASCA 17

Wilson v The State of Western Australia [2010] WASCA 82

1 PULLIN JA: This is an appeal against sentence. The appellant was convicted after trial for unlawfully doing grievous bodily harm to a man by biting off part of the man's right thumb on 23 January 2009 at Beldon.

2 On 23 January 2009, the victim went to a party at the house at which the appellant lived. During the party the appellant challenged the victim to take part in an arm wrestle and then, with premeditation, attacked him without warning or provocation. The appellant first punched the victim in the face then started to bite the victim's right thumb after they fell to the ground. Despite bystanders trying to restrain him, the appellant severed part of the victim's right thumb with his teeth. This involved the application of considerable force. After spitting out the portion he had bitten off, the appellant then bit the victim's left thumb, breaking the skin. He was restrained before he could severely injure that thumb. Medical evidence at the trial revealed that the skin, part of the nail bed and the distal of the bone of the right thumb had been bitten through and severed. The amount of thumb that was lost to the victim was 50% of the portion from the knuckle to the tip of the thumb which was about a quarter of the total length of the thumb. Medical evidence was that the pain would have been excruciating and at the highest level of pain someone could experience.

3 The victim impact statement reveals that the victim's thumb is now permanently disfigured and that the victim lives with the ever present worry of knocking or hurting the stump. He has limited feeling or sensation in the stump. He has had to learn to use his left hand for many tasks that prior to his injury he did with his right hand. The injury is gruesome to look at and it is a constant reminder to the victim of the unprovoked attack upon him. In short, the injury has left the victim with a functional and physiological impact.

4 The sentencing judge related some other circumstances of the offence and turned to matters personal to the appellant. His Honour noted that at the time the appellant was a 46-year-old sea captain. His Honour found that after a period of five weeks in the north of the State he returned to find that his landlady had installed a new 'boyfriend'. The new boyfriend invited strangers to a barbecue which was intended to be just for the appellant and his friends. The appellant became angry and turned nasty, an attitude fuelled by intoxication. His rage drove him to attack the victim without a semblance of an excuse or provocation. The sentencing judge noted that the appellant had no criminal antecedents, an excellent work and professional history, had been an excellent family man and friend to acquaintances, and had been a contributor to the community. On the other hand, the sentencing judge noted that the initial violence was premeditated and unnecessary, the act of biting was intentional, and that there was a lack of remorse. The sentencing judge observed that the maximum permissible sentence was 10 years' imprisonment and, although serious, the appellant's conduct was not in the category of the worst of its kind.

5 The appellant was sentenced to 3 years' imprisonment and made eligible for parole, the sentence being backdated to 5 March 2010. In addition, a lifetime violence restraining order barred the appellant from contact with the victim.

1. The learned sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was in all of the circumstances manifestly excessive having regard to the range of sentences commonly imposed for offences of this kind and taking account of all factors which were relevant to the offending and to the offender.
2. The learned sentencing Judge erred in finding that the Appellant had displayed a total lack of remorse when he had in fact attempted to apologise for his conduct to the friend of the complainant soon after inflicting the injury and later apologized for what he had done when testifying under oath at the trial.
3. The learned sentencing Judge erred in the exercise of his sentencing discretion by failing to have sufficient or proper regard to Section 76(1) of the Sentencing Act 1995 (WA) in considering whether to suspend the term of imprisonment.

7 Leave to appeal has been granted on grounds 1 and 3 and the application for leave to appeal on ground 2 was referred to the hearing of this appeal. Ground 2 alleges express error so it is appropriate to deal with it first.

8 The appellant complains that the sentencing judge erred in finding that the appellant had displayed a 'total lack of remorse'. The appellant alleged that this was wrong because the appellant attempted to apologise for his behaviour to a Matthew Watters who was a friend of the complainant at the party. However, the sentencing judge found that after the incident, the appellant simply continued to 'party on' and his 'apologetic behaviour' was 'ambiguous'. The respondent pointed to evidence that after biting off the victim's thumb and spitting it out, he not only continued to 'party on' but demonstrated a lack of concern or remorse by his conduct which included dancing dressed in a hockey mask.

9 The appellant also pointed to evidence at trial where the appellant apologised for his conduct. As to this, the respondent pointed out that the appellant's evidence was that he was sincerely sorry for what happened 'because ... [i]t's created nothing but grief to me'. This evidence was capable of being construed as indicating that the appellant was more concerned about the problems he was experiencing as opposed to genuine remorse over the harm he did to the victim.

10 During sentencing submissions, the appellant never expressed any remorse or concern about what happened to the victim. The appellant did not plead guilty. The finding the judge made was open to him. This ground has no reasonable prospect of success and leave to appeal on this ground should be refused.

Ground 1: whether sentence was manifestly excessive

11 The principles by which a claim of manifest excess is determined were stated in Chan v The Queen (1989) 38 A Crim R 337, 342, and see also Wilson v The State of Western Australia [2010] WASCA 82 [2]. In determining whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentences prescribed by law for the relevant offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender. The imposition of a sentence involves the exercise of a discretion. In the absence of express error and where the sentence is said to be manifestly excessive, the suggestion is that there is an error which should be inferred. The inference is drawn where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. The court will not intervene simply because the members of the court, had they been sentencing the offender, might have imposed a different sentence.

12 Sentences of immediate imprisonment are usually imposed for serious examples of unlawfully causing grievous bodily harm, but each case must be considered and determined on its merits: Collins v The State of Western Australia [2007] WASCA 108. In assessing the criminality involved in an offence of this kind, regard will usually be had to three matters, namely:

(b) the nature of the act which causes the injury; and

(c) the background to the circumstances of the offence.

See Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11].

13 The appellant refers to Trompler, Clements v The State of Western Australia [2006] WASCA 69 and Mercanti v The State of Western Australia [2009] WASCA 109 as providing examples of cases where the sentence imposed was less than 3 years. The appellant also referred to Bruno v The State of Western Australia [2005] WASCA 149, Etrelezis v The State of Western Australia [2001] WASCA 327, Trompler and Clements as cases where weapons were used in the attack. The appellant also referred to the fact that he was otherwise of good character, had no relevant criminal record, no previous reputation for violence, there was little prospect of the appellant reoffending, that the appellant was employed in a responsible position, and a person supported by good character references.

14 It is pertinent to observe that the maximum penalty for this offence was increased from 7 years to its current maximum of 10 years in 1998. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for these offences which are towards the upper end of the range short of the most serious kind: Trompler [19]; Mercanti [35]; Steel v The State of Western Australia [2010] WASCA 118 [71] - [72]. In Steel [71] - [72], Buss JA (McLure P & Owen JA agreeing) referred to Mercanti and noted that the general range established in cases of grievous bodily harm was between 8 months and 5 years 4 months, but more like 3 - 5 years for offences towards the upper end of the range.

15 As to the three relevant matters, namely the nature of the harm done to the victim, the nature of the act and the surrounding circumstances, it is clear that the nature of the harm was substantial, leaving the victim with a physiological and emotional impact. As to the nature of the act, it was extreme, unprovoked and sustained. It was a senseless act of extreme violence. The sentencing judge found the biting was 'base, wicked and disgusting' and that it was 'animalistic, evil, humiliating, fearsome and protracted'. This is a fair assessment of the nature of the appellant's act. The background and surrounding circumstances were very serious. The appellant was a large man of considerable strength and bulk. The victim

was slightly built and no physical match for the appellant. The attack was cowardly and reprehensible and the sentencing judge found that the appellant has shown a lack of remorse. All of these three relevant factors suggest that a significant term of imprisonment was likely. The sentence in this case was well within the appropriate range and the sentence imposed was not manifestly excessive and ground 1 has no merit.

16 The appellant contends that the sentencing judge erred in failing to have sufficient or proper regard to s 76(1) of the Sentencing Act 1995 (WA).

17 There was no statutory prohibition to ordering that the sentence of imprisonment be suspended because it was less than 60 months. However, the sentencing judge clearly recognised his obligation to consider whether to suspend the term of imprisonment. The appellant merely contends that the sentencing judge failed to take 'sufficient' account of the factors which, according to the appellant, made a suspended sentence a viable alternative. A complaint that the sentencing judge failed to take 'sufficient' account of, or gave 'inadequate' weight to factors which would justify a suspended sentence does not establish error: see Vagh v The State of Western Australia [2007] WASCA 17 [47]. This ground has no merit. A consideration of all relevant factors establishes that the offence was so serious that a suspended sentence was out of the question.