Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Unlawfully doing grievous bodily harm - Sentence of 2 years 6 months' immediate imprisonment - Whether sentence manifestly excessive - Turns on own facts

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

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

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

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

Hayes v The Queen [2003] WASCA 230

Hussaini v The State of Western Australia [2009] WASCA 207

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

R v Hodges [1999] WASCA 278

R v Liddington (1997) 18 WAR 394

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

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

The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394

The State of Western Australia v Johnson [2009] WASCA 224

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

Ward v The State of Western Australia [No 2] [2010] WASCA 208

1 McLURE P: I agree with the orders proposed by Buss JA generally for the reasons he gives. I agree with him that suspension of the term is not appropriate. In reaching that conclusion I have had regard to all relevant sentencing considerations: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26] and [84] - [85]; Collins v The State of Western Australia [2007] WASCA 108 [16].

2 BUSS JA: The appellant was convicted, on his fast-track plea of guilty in the District Court before Sweeney DCJ, on one count in an indictment which alleged that on 19 March 2010, at Warwick, the appellant unlawfully did grievous bodily harm to the complainant, contrary to s 297(1) of the Criminal Code (WA).

3 On 2 December 2010, the sentencing judge imposed a sentence of 2 years 6 months' imprisonment, to be served immediately. Her Honour ordered that the sentence commence on that date. The appellant had not spent any time in custody for this offence. A parole eligibility order was made.

4 The appellant appeals to this court against the sentencing decision.

5 The appellant was born on 12 February 1985. He was aged 25 years at the time of offending and when sentenced.

6 The appellant believed that the complainant had stolen money from an acquaintance. The appellant agreed, with two other males, forcibly to recover the money from the complainant. The agreement was that, when they met with the complainant, one of the other males would distract the complainant so that the appellant could assault him and the money owed would be recovered.

7 The appellant and his co-offenders met with the complainant and, as agreed, the appellant assaulted him. The assault involved the appellant 'crashing' into the complainant's back with his hip and shoulder. This caused the complainant to fall to the ground and suffer minor injuries. The co-offenders then rifled through the complainant's bag. One of them ran off. When the complainant chased this co-offender he was punched to the back of the head by the other co-offender. The complainant, apparently unconscious, fell to the ground. He suffered bleeding on his brain, a broken jaw, broken teeth and lacerations.

8 The appellant remained at the scene and rendered first aid to the complainant while awaiting for the arrival of an ambulance and the police.

9 When the police arrived the appellant expressed remorse repeatedly. He made full admissions at the scene and during a video-recorded interview.

10 The appellant pleaded guilty at the first reasonable opportunity.

11 The complainant was taken by ambulance to hospital. He was placed in an induced coma and underwent surgery to reduce the pressure on his brain. It appears that the complainant was treated in hospital for about five weeks before he was released.

12 The complainant declined to make a victim impact statement. However, the prosecutor informed the sentencing judge, without objection, that information received from the complainant indicated that he had made 'an all but complete recovery' (ts 6). However, he has some residual speech difficulties and headaches, and has some lifestyle restrictions in that he cannot consume alcohol, play contact sports or swim alone in the ocean. Nevertheless, the complainant had said that his quality of life had actually improved markedly since the incident in question because it had forced him to stop consuming alcohol and using drugs (ts 6 - 7).

13 The sole ground of appeal alleges that the trial judge erred by imposing a sentence that was manifestly excessive.

14 The particulars of the ground allege that the sentence was manifestly excessive having regard to the length of the sentence and, also, the fact that the sentence was not suspended.

15 On 14 March 2011, Mazza J granted leave to appeal.

16 The State conceded on appeal that 'the length of the term appears excessive in all the circumstances' (AB 18).

17 This concession related solely to the length of the term. The State maintained that a term of imprisonment to be served immediately was the only sentencing option that was open.

18 At the material time, the maximum penalty for the offence of doing grievous bodily harm, contrary to s 297(1) of the Code, was imprisonment for 10 years.

19 As Wheeler JA (Buss JA agreeing) noted in Trompler v The State of Western Australia [2008] WASCA 265, there are, in general, three matters of significance in determining the criminality of an offence which involves doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] - [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).

20 In Trompler, McLure JA made these comments about the broad range of sentences (post-transitional) for offences of this kind:

The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].

21 It must be noted that in each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394; Bruno v The State of Western Australia [2005] WASCA 149; R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.

I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. 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 those offences which are towards the upper end of the range, although not of the most serious kind [19].

23 More recently, in Mercanti v The State of Western Australia [2009] WASCA 109, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 - 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this is the appropriate range to apply [36]. See also Steel v The State of Western Australia [2010] WASCA 118; Ward v The State of Western Australia [No 2] [2010] WASCA 208.

24 The principles relating to the suspension of a term of imprisonment are set out in my reasons in The State of Western Australia v Johnson [2009] WASCA 224 [67] - [72] (Owen & Wheeler JJA agreeing).

25 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act 1995 (WA), relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act. That is, a court is not permitted to impose a term of imprisonment to be served immediately unless that is the only appropriate sentencing option.

26 The factors to be considered when deciding whether or not to suspend a term of imprisonment include:

(a) the perceived seriousness and intrinsic character of the offence;

(d) factors personal to the offender including mitigating circumstances;

(e) the need to demonstrate the community's condemnation of offences of the kind in question;

(f) the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and

(g) any reasons militating in favour of an exercise of mercy.

This list of factors is not, of course, exhaustive. See R v Liddington (1997) 18 WAR 394, 406 (Steytler J).

27 It must be emphasised that the discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

28 In the present case, the appellant did not directly cause the injury suffered by the complainant. These injuries were caused by the action of one of the co-offenders, who struck the complainant to the back of the head, causing him to fall to the ground, apparently unconscious. The co-offender's action comprised a single, deliberate blow. It did not involve sustained violence or the use of a weapon. Nevertheless, the blow was of sufficient force apparently to render the complainant unconscious and, as a result, he fell face first to the ground without raising his arms to break his fall.

29 Before the complainant was attacked, the appellant and his co-offenders formed a common intention to prosecute an unlawful purpose. This purpose involved restraining or subduing the complainant in order to recover money alleged to have been stolen by him. The escalation of the attack into the co-offender's action of causing grievous bodily harm to the complainant was a reasonably foreseeable consequence of the prosecution of the unlawful purpose.

30 The sentencing judge found, in the course of her sentencing remarks, that:

(a) The appellant genuinely believed that the complainant had stolen money from someone he knew (ts 19). He was motivated by a genuine belief that the complainant had taken advantage of someone and the appellant was 'trying to right wrong' (ts 19).

(b) The appellant did not intend that the complainant should suffer the serious harm which was ultimately inflicted on him (ts 18).

31 The appellant has a prior criminal record. His record includes, relevantly, convictions for violent behaviour (2004: $200 fine); unlawful damage (2005: $100 fine); breach of protective bail conditions (2006: $300 fine); sexually penetrating a child over the age of 13 and under the age of 16, contrary to s 321(2) of the Code (2008: four counts: total effective sentence of 24 months' immediate imprisonment); stealing (two charges: 2009: total fine of $600).

32 The sentencing judge referred extensively in her sentencing remarks to a pre-sentence report dated 16 November 2010 and a psychological report dated 8 November 2010 from a forensic psychologist. Her Honour appears to have placed substantial weight on various observations in these reports.

33 The appellant did not make a positive impression on the forensic psychologist. She made these comments in her report about his presentation:

[The appellant] attended the interview promptly and although appropriately groomed and dressed it was evident through his body odour (he informed that he had ridden his pushbike to the interview and it was a hot day) that he presents with some issues pertaining to personal hygiene. [The appellant] appeared distracted and disinterested for much of the interview. He entered the interview room on the telephone and proceeded to receive calls throughout the duration of the assessment. He also picked his nose and scratched at his flaking sunburnt skin. [The appellant] spoke in a monotone and expressed frustration at being asked questions about his personal history. He was largely unable or unwilling to convey a detailed history of his personal circumstances instead preferring to request that his mother be asked the questions instead. To this end he attempted to call her during the interview. He was advised that the writer would contact her at a later point. [The appellant's] mood was observed to be at the low end of normal range and his affect (observable emotional state) was restricted with little or no facial expression. He made minimal eye contact. There was no evidence of cognitive impairment and no obvious deficits in attention and/or concentration observed during this interview. There was no evidence of mental illness observed or reported in this assessment and no history of such.

34 The forensic psychologist mentioned in some detail the appellant's personal and family history. Also, she made a psychometric assessment. Her report states that the appellant's profile, as revealed by this assessment, indicated 'significant personality pathology of a borderline and antisocial nature'. These features were together causing him 'clinically significant distress and impairment in more than one area of functioning (social, occupational, and family domains)'. Also, the appellant's profile indicated 'significant levels of anxiety and depression that are likely to be longstanding'. Further, post-traumatic stress was evident.

35 The forensic psychologist summarised her views in relation to the appellant, relevantly, as follows:

His criminal record reflects a pattern of increasingly antisocial behaviour and suggests no indication of behavioural change with minimal moderating or maturational factors evident.

Risk of future violence was considered using a valid and reliable instrument (the VRAG) which contains factors that have been clinically and empirically identified as those most predictive of risk of general violence. [The appellant's] risk for violence toward others is estimated to be in the high range due to the presence of a number of concerning factors. Criminogenic factors associated with his offending behaviour include among other things, his association with criminal peers and antiauthority attitudes and beliefs. Although clinically indicated [the appellant] has expressed limited interest in engaging in intervention programs.

36 The author of the pre-sentence report had read the psychological report. The author's views about the appellant were similar to those expressed by the forensic psychologist. This is apparent from the following passage in the summary at the end of the pre-sentence report:

[The appellant] is a 25 year old man convicted of a serious violent offence, which resulted in the victim receiving serious injuries. He has a history of committing violent related offences and admitted to working as a 'standover man', inflicting violence on people who owe money. Consistent with the Psychological Report, his risk for violence towards others is high due to his anti-social lifestyle and involvement with criminal peers. [The appellant's] motivation to address his offending behaviour is low.

37 In my opinion, the sentencing judge's discretion did not miscarry when she decided to impose a term of immediate imprisonment. The circumstances of the offending were serious. I note, in particular, these factors:

(a) At the material time, the appellant was working as, in essence, a 'standover man' for the collection of debts, and his current offending occurred in this context.

(b) The use of violence, as a self-help remedy, in the drug subculture occurs frequently. This form of alternative dispute resolution has no place in a civilised society.

(c) The complainant suffered life threatening injuries. He was treated in hospital for about five weeks. He has some residual disabilities of significance.

General deterrence was an important sentencing consideration.

38 After having regard to all relevant sentencing considerations, I am of the opinion that a term of imprisonment to be served immediately was the only sentencing option that was open to her Honour.

39 I am persuaded, however, that there is merit in the State's concession that the length of the term of immediate imprisonment imposed on the appellant was manifestly excessive.

40 There was significant mitigation to be found in the appellant's fast-track plea of guilty; the first aid he administered to the complainant at the scene; his waiting at the scene for an ambulance and the police to arrive; his repeated expressions of remorse to police at the scene; the full admissions he made at the scene and in the video-recorded interview with police; and the repeated contact he made with the investigating police officers, after he was charged, for the purpose of checking on the complainant's welfare.

41 Also, the seriousness of the appellant's offending was ameliorated, to some extent, by the fact that he did not intend that serious harm should be inflicted on the complainant and the fact that, although he sought to recover stolen money by crude and unlawful means, he did not stand to obtain any personal tangible benefit from this particular criminal behaviour.

42 Further, there was a disparity between the facts and circumstances of the offending and the significant mitigation to which I have referred, on the one hand, and the negative portrayal of the appellant in the psychological report and the pre-sentence report, on the other. As I have mentioned, the sentencing judge appeared to rely heavily on these reports.

43 In my opinion, when the sentence of 2 years 6 months' immediate imprisonment is viewed against the maximum penalty for the offence, the level of seriousness of the circumstances of the appellant's offending, the sentences customarily imposed for the offence and the appellant's personal circumstances, it is apparent that the sentencing outcome was unreasonable or plainly unjust.

44 I would allow the appeal and set aside her Honour's sentencing decision. This court has the materials necessary to resentence the appellant. The new sentence must, of course, be commensurate with the seriousness of the offence, as determined by taking into account the maximum penalty, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. I would substitute a term of 20 months' immediate imprisonment. The new sentence should be taken to have taken effect on 2 December 2010, being the date on which the appellant went into custody for this offence. He should remain eligible for parole.