Court of Appeal (WA)|2011-08-02|Before: Mr J, Mazza J, Lure P, Newnes JA

ERIHA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 167 (2 August 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ERIHA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 167

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Offences against the person - Kidnapping - Grievous bodily harm with intent - Victim abandoned in the bush - Whether sentence imposed on offence of grievous bodily harm with intent manifestly excessive - Whether total effective sentence infringed first limb of totality principle

Criminal Code (WA), s 294(1), s 304(2), s 317(1), s 332(2)(d)

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

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

McCormack v The Queen [2000] WASCA 139

Minhaj v The Queen [2000] WASCA 52

Pollock v The State of Western Australia [2009] WASCA 121

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

Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469

Stephens v The State of Western Australia [2005] WASCA 98

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

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

4 On 19 March 2010, the appellant pleaded guilty to five counts in an indictment presented to the District Court as follows:

(1) On 18 April 2009 at Kalgoorlie [the appellant] unlawfully assaulted [J] and thereby did him bodily harm.

(2) On the same date at Kalgoorlie [the appellant], Michael McKay Starr, and Joseph Davison Williams detained [J] with intent to compel [J] to do an act he was lawfully entitled to abstain from doing.

(3) On the same date at Kalgoorlie [the appellant], Michael McKay Starr, and Joseph Davison Williams unlawfully assaulted [J] and thereby did him bodily harm.

(4) On the same date at Kalgoorlie [the appellant], Michael McKay Starr, and Joseph Davison Williams, with intent to maim, disfigure, disable or do some grievous bodily harm to [J], unlawfully did grievous bodily harm to [J].

(5) On the same date and at the same place as count (4) [the appellant], Michael McKay Starr, and Joseph Davison Williams, with intent to harm [J], did an act as a result of which the life, health or safety of [J] was, or was likely to be, endangered.

5 On 27 August 2010, the appellant was sentenced by O'Neal DCJ to a total effective term of imprisonment of 11 years with eligibility for parole. The sentence was backdated to commence on 20 April 2009. He will be eligible for release on parole 9 years from that date. The maximum penalties for the offences and the individual sentences imposed by his Honour are as follows:

Assault occasioning bodily harm: s 317(1) Criminal Code (WA)

Grievous bodily harm with intent: s 294(1) Criminal Code (WA)

Act intended to do harm: s 304(2) Criminal Code (WA)

6 His Honour arrived at the total sentence of 11 years' imprisonment by ordering the sentence on count 4 to commence 2 years after the commencement of the sentence on count 2.

7 Leave has been given for the appellant to appeal against sentence on the following grounds.

Ground one:

The sentence imposed for the offence of grievous bodily harm with intent was, in all the circumstances, manifestly excessive:

Particulars:

1.1 The plea of guilty;

1.2 The Appellant's antecedents;

1.3 The Appellant's criminality;

1.4 The range of sentences customarily imposed for that type of offence.

Ground two:

The learned sentencing Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences when viewed in their entirety and all the circumstances of the case, including those referable to the Appellant personally.

8 The general principles governing sentencing appeals are well-known and were set out by this court in Wilson v The State of Western Australia [2010] WASCA 82 [2].

9 There are some factual inconsistencies between his Honour's sentencing remarks in the present case and his remarks in the case of one of his co-accused, Michael Starr. They are not of any practical significance. For the purposes of this appeal, there is no dispute as to the facts of the appellant's offending.

10 The appellant and the victim, who I will refer to as J, were, in the early part of 2009, living in Kalgoorlie and were known to each other. At the time of the offences, J was a slightly built 17-year-old youth. The appellant was 22 years old.

11 As a result of events which occurred in or about the early part of April 2009, the nature of which are irrelevant for the purposes of this appeal, the appellant harboured considerable animosity towards J.

12 In the late afternoon of 18 April 2009, J was waiting to meet a friend at a service station in Kalgoorlie. As he sat there, the appellant and his two co-accused, Joseph Williams and Michael Starr, arrived at the service station in a Nissan Patrol utility being driven by Mr Williams. The vehicle pulled up abruptly, and all three men got out and ran towards J. The appellant punched J to the side of his face with a clenched fist, causing him to fall to the ground. On the ground, the appellant kicked J a number of times to the head and chest. As a result of this assault, J suffered some lacerations and abrasions (count 1).

13 Mr Williams and Mr Starr then forced J into the front cab of the utility. The three offenders and J then drove to a group of units in Lane Street, Kalgoorlie. The offence of kidnapping (count 2) commenced with the act of putting J into the vehicle and, as will be seen, continued for some hours.

14 At the group of units, J was dragged by Mr Williams out of the utility. Mr Williams and Mr Starr then carried J into unit 1, where he was forced onto the concrete floor. While he was on the floor, the three accused and two other men assaulted him by numerous punches and kicks to all parts of his body. This assault continued for between 5 and 10 minutes. At the end of it, witnesses observed J to be in a very bad physical condition, noting that he was bleeding and had difficulty holding himself up and walking (count 3).

15 After this assault, J was taken back to the utility and forced into it.

16 Mr Williams then drove the utility to an isolated bush location outside Kalgoorlie, approximately 7.8 kilometres from the Lane Street units. Once at that location, the appellant and his co-accused got out of the vehicle. Mr Williams tied J's feet together. At this point, the complainant's shirt was removed. The appellant and Mr Starr then urinated on J's face.

17 Fixed to the rear tray of the utility was a crane. After J was urinated on, Mr Williams attached J's legs to the end of the crane and then raised it so that J was suspended above the ground in an upside down position. One of the offenders then tied J's wrists together. In this completely vulnerable state, the offenders each kicked J more than once, and with force, to his head, chest and stomach. The kicks caused J to cough up blood. Mr Williams then lowered J to the ground.

18 Once lowered, one of the offenders used a blunt blade to carve a word onto J's bare chest, causing a number of horizontal and vertical lacerations. The apparent intention of this was to provide J with 'a memento' of his treatment. By this point, J thought he was going to die.

19 J's ordeal continued. Using a small claw hammer, the appellant struck J repeatedly on the back of each of his hands, causing intense pain and serious permanent injury (count 4).

20 The appellant then struck J repeatedly with a metal tyre lever to his legs. During this process, J lost his trousers and shoes. The blows inflicted by the appellant caused extreme pain and serious injuries. The appellant also struck the heels of J's feet with the hammer.

21 By this time J was reduced to wearing only his boxer shorts and socks, and could only hobble.

22 The appellant and his co-accused then got back into the utility and drove off in the direction of Kalgoorlie without giving J any assistance. Having regard to the remote nature of where he was left, his physical condition and his lack of adequate clothing, food, water or shelter, the appellant knew and intended that J's health and safety would be endangered (count 5).

23 By the time the offenders left the scene it was dusk. J could not stand up and he was in considerable pain. J spent the entire night in the bush. At dawn the following day, he managed to crawl 4 to 5 metres to a dirt road where, at about 8.30 am, he was seen by a man who happened to be driving on the dirt road to go motorbike riding with his son. This man carried J to his vehicle and drove him to Kalgoorlie Hospital. After initial treatment, he was transferred by aircraft to Sir Charles Gairdner Hospital in Perth where he was treated by orthopaedic and plastic surgeons. He remained in hospital for three weeks.

24 There is no dispute that the appellant was the principal offender and the person who caused the most serious injuries to J. Mr Williams was described as his lieutenant, and Mr Starr was the least culpable of the three offenders.

25 At the time of his initial admission to hospital, J was suffering from mild hypothermia and was dehydrated. He had extensive multiple bruises and lacerations over his entire body.

26 He had a deep laceration to his right heel through to the bone of the heel, caused by the hammer blows the appellant inflicted to that part of the body.

27 J's hands were badly swollen and bruised. He sustained multiple fractures to his hands, some of which were exposed to the air, with an obvious risk of infection.

28 J's left shinbone was fractured in a number of places below the knee. His right kneecap was split from one side to the other. This gap was wide enough to require surgical closure and fixation, but that operation was unable to be performed because of injuries J had sustained to the blood vessels of his right leg.

29 In time, the injuries to the shinbone have healed reasonably well, but because the surgeon was prevented from dealing with J's right kneecap, it has taken longer to heal and has not healed properly.

30 It is anticipated that J will suffer some permanent disability to his hands.

31 The sentencing judge had before him a victim impact statement from J dated 12 April 2010. That statement speaks of the pain and disabilities that the victim has suffered and will continue to suffer in the future.

32 As of the date of the statement, he had very limited use of his hands. Prior to the offences J was interested in pursuing a mechanical trade, but that occupation is no longer available to him due to his injuries.

33 He is unable to walk any significant distance without suffering pain in his legs, and he is no longer able to enjoy activities such as bicycle riding and rollerblading.

34 Psychologically, J has suffered anxiety attacks and serious depression, and has attempted suicide.

The personal circumstances of the appellant

35 By the time he was sentenced, the appellant had turned 23 years old. He had experienced a very difficult childhood in which he was exposed to violence by his mother and between his parents. He left school part-way through year 11, and at that time he ran away from home.

36 Apart from some degree of depression, the appellant has no mental health issues.

37 As an adult, the appellant has convictions for burglary and attempted burglary in 2005, assault occasioning bodily harm in 2006, and carrying a controlled weapon in a manner likely to cause fear in 2008. Prior to the current offences, he had not been sentenced to an immediate term of imprisonment.

38 A court-ordered psychological report was prepared for his Honour. The appellant revealed to the author of the report that as a teenager he had utilised violence as a means of gaining popularity. The psychologist noted that the appellant's use of violence gains momentum and escalates at a very rapid rate. With respect to the present offending, the psychologist observed that the appellant's violence energised him to such an extent that he continued his behaviour without any sense of control. In the opinion of the psychologist, without successful treatment, the appellant posed a dangerous risk of reoffending in the future. She noted that the appellant impressed as being genuinely motivated to address his behaviour, but observed that his propensity for violence is entrenched and that his views as to the social utility of violence may be difficult to shift.

39 No challenge has been made to any of the findings made by his Honour in his sentencing remarks.

40 His Honour gave mitigatory weight to the appellant's pleas of guilty which, he acknowledged, the appellant indicated within a short time of his arrest and which were entered at an early stage in the proceedings. His Honour also took into account the appellant's youth, although he said that the mitigating effects of youth were limited by the appellant's prior record and the serious nature of the offending.

41 His Honour gave some mitigatory weight to the appellant's expressed remorse, but doubted whether those expressions of remorse were entirely wholehearted. His Honour made allowance for steps which the appellant had taken towards his rehabilitation.

42 His Honour regarded all of the appellant's offending as serious. He observed that it was the appellant who initiated the violence at the service station, and that his violence towards J persisted having regard to the offences which occurred at the Lane Street unit, the isolated area of bush and then leaving J there so that his health and safety were in danger. His Honour observed that the appellant humiliated J and, with complete justification, said that what occurred was torture. With respect to count 4, his Honour described the appellant's behaviour towards his victim as deliberate and methodical. He characterised it as a cruel and sustained attack. He observed that the injuries J suffered were shocking and will result in a loss of dexterity and other residual problems for life. He concluded that the overall circumstances of count 4 were such as to bring it within the worst category of such offences.

43 In support of ground 1, the appellant's counsel, Mr Watters, conceded that the offending in count 4 was in the worst category of such offences. However, he submitted having regard to sentences imposed in other cases involving offences of grievous bodily harm with intent in the upper echelon of seriousness, the sentence of 9 years was manifestly excessive, particularly when consideration is given to the appellant's early plea of guilty and his youth.

44 With respect to ground 2, Mr Watters submitted that the total term of 11 years' imprisonment offended the first limb of the totality principle. Mr Watters submitted that although the appellant's offending involved criminality of a high order, the total overall sentence he received did not bear a proper relationship to the overall criminality involved in the offences. Mr Watters submitted that the offences occurred in what he described as 'a continuing transaction' and again emphasised the appellant's pleas of guilty and his youth.

45 Mr McGrath, on behalf of the respondent, submitted that in light of his Honour's finding that count 4 fell within the worst category for offences of this kind, and having regard to the decision of this court in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129, sentences imposed in other cases were of less significance. He submitted that as the offence was in the worst category of offences of its kind, it justifiably, notwithstanding the mitigating factors, warranted condign punishment and the sentence imposed was not manifestly excessive. In relation to ground 2, it was submitted that, taking into account all of the factors relevant to the offending, particularly its seriousness, that even having regard to the mitigating factors, some accumulation of the sentence was required and that the total effective sentence of 11 years' imprisonment was an appropriate measure of the appellant's total criminality.

Ground 1 - was the sentence imposed on count 4 manifestly excessive?

46 To determine whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

47 As observed earlier, the maximum penalty for count 4 is 20 years' imprisonment.

48 As to the seriousness of the case, it is not disputed that the present case falls into the worst category of offences of this type.

49 With respect to the appellant's personal circumstances, apart from his plea of guilty and to a lesser extent his age, they afford him only limited mitigation.

50 Mr Watters referred to a number of cases decided by this court to support the submission that the sentence of 9 years' imprisonment imposed on count 4 was manifestly excessive. He cited Minhaj v The Queen [2000] WASCA 52; McCormack v The Queen [2000] WASCA 139; Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403; McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428; and Stephens v The State of Western Australia [2005] WASCA 98. In each of these cases the appellant was convicted after trial of doing grievous bodily harm with intent.

51 In Minhaj v The Queen, the appellant doused his wife with mineral turpentine and set her alight, causing her serious injuries. The sentence of 12 years' imprisonment (8 years post-transitional) imposed at first instance was not disturbed.

52 In McCormack v The Queen, the appellant stabbed his wife in the chest, causing a pneumothorax, which, if left untreated, would have led to her death. The trial judge imposed a sentence of 8 years' imprisonment (5 years 4 months post-transitional). The appellant's appeal against this sentence was dismissed.

53 In Smith v The Queen, the appellant inflicted two stab wounds to the victim, one of which was through the throat. The trial judge sentenced the appellant to 6 years' imprisonment. After a Crown appeal, the sentence was increased to 8 years' imprisonment (5 years 4 months post-transitional).

54 In McMaster v The Queen, the appellant shot, at close range in a nightclub, two men, each of whom could have died from their wounds without treatment. The appellant was sentenced on each count to 7 years' imprisonment with partial accumulation, resulting in a total effective sentence of 9 years' imprisonment. The appellant's appeal against sentence was dismissed.

55 In Stephens v The State of Western Australia, the appellant deliberately drove for a distance of approximately 30 m, knowing that the victim had fallen and become wedged underneath his four-wheel drive vehicle. The victim suffered permanent physical and emotional injuries. The sentence of 6 years' imprisonment was upheld on appeal.

56 It can readily be accepted that the sentence imposed upon the appellant in the present case (whether viewed from the perspective of the sentences fixed by the court or the minimum custodial period) was greater than any of the individual sentences imposed in the cases referred to by Mr Watters, particularly when one considers the appellant's plea of guilty. However, that observation does not lead to the conclusion that the sentence imposed upon the appellant was manifestly excessive.

57 Each of the cases referred to by Mr Watters was decided before the commencement on 14 January 2009 of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act). Relevantly to this case, cl 3A(3) and (4) provide:

(3) A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not clause 2 applied to their imposition.

(4) A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.

58 These provisions were analysed by this court in The State of Western Australia v BLM.

59 The majority (Wheeler and Pullin JJA, Owen JA agreeing) held that the effect of these provisions was not to increase the minimum custodial terms to be served by offenders across the board. In the general run of cases, that is, all cases which do not fall within the worst category of cases, where a range of sentences capable of affording comparison has been established, a sentencer must have regard to the minimum custodial terms imposed in those cases with the aim of achieving broad consistency.

60 However, where an offence comes within the worst category of cases, a sentencing judge is not bound, for the purposes of consistency, by the range of sentences imposed prior to the commencement of the Amendment Act. A court may, in such a case, increase the minimum custodial term beyond the range of sentences imposed before the Amendment Act. Thus, a court, in appropriate circumstances, and having regard to established sentencing principles, may impose a sentence at or near the statutory maximum: BLM [24], [25], [42] and [43].

61 Having regard to the Amendment Act and its effect on 'worst category' cases such as the present case, the authorities relied upon by Mr Watters have little bearing on the question of whether the sentence imposed on the appellant was manifestly excessive.

62 The circumstances in which the appellant committed count 4 and their effect on the victim have already been described elsewhere in these reasons and do not require repetition. His Honour's characterisation of the appellant's conduct as 'deliberate', 'methodical', 'cruel' and 'sustained' are entirely apt. Without any possible justification, the appellant brutally assaulted a victim who had already been beaten by him and others into complete submission and deliberately inflicted permanent injuries to his hands. The appellant's criminality was of the highest order. It warranted a very long custodial sentence in order to provide proper punishment, denunciation, public protection and general and specific deterrence.

63 The learned sentencing judge gave express and due weight to the appellant's plea of guilty, his age and other personal circumstances. This can be readily seen by the fact that although the case was in the worst category, ultimately the appellant received a sentence which was less than one-half of the statutory maximum.

64 The sentence imposed upon the appellant was undoubtedly severe. However, having regard to all the circumstances of the case, it reflected the exercise of a sound sentencing discretion. The appellant has failed to demonstrate error on the part of his Honour. Accordingly, ground 1 cannot succeed and must be dismissed.

Ground 2 - did the total overall sentence of 11 years breach the totality principle?

65 Ground 2 asserts that the total effective sentence of 11 years' imprisonment imposed upon the appellant offended the totality principle.

66 An accepted statement of the totality principle is set out in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] by McLure JA as follows:

The appellant relies on the totality principle which comprises two limbs. 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: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

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: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

67 The appellant here alleges a breach of the first limb of the totality principle. It has not been suggested that the total overall sentence was crushing. On any analysis, the appellant's overall offending was extremely serious. The appellant, in company with others, deprived the victim of his liberty for a period of some hours during which the victim was tortured. With complete justification, J thought he would die. The appellant and his co-offenders callously left the victim in the bush in a badly injured state to fend for himself. The offending was violent, prolonged and left the victim with permanent physical injuries. The whole purpose of the appellant's actions were to humiliate, degrade and inflict serious injury upon the victim. Although the offending occurred during a single course of conduct, that course of conduct was multifaceted and the offending warranted some accumulation of the sentences imposed. This was not a case to which the so-called one transaction rule applied: see R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554.

68 Mr Watters sought to support his argument on this ground by reference to Pollock v The State of Western Australia [2009] WASCA 121 and Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469. In Pollock, the appellant pleaded guilty part way through his trial to nine violent offences, including an offence of grievous bodily harm and an offence of sexual penetration without consent, which occurred during the course of a home invasion. At the time of the offending, the appellant was 29 years of age and had what was described as a relatively minor criminal record. The appellant alleged that the total effective sentence of 14 years' imprisonment offended the totality principle. The appeal was dismissed.

69 In Seroka, the appellant was convicted after trial of grievous bodily harm with intent, deprivation of liberty and assault occasioning bodily harm. The appellant, the victim and a man named McKay had all been involved in the manufacture of methylamphetamine. The police raided the laboratory and seized the equipment. The appellant and McKay unsuccessfully sought compensation from the victim for the property seized. As revenge, the victim was severely assaulted on two separate occasions. The appellant received a total overall sentence of 7 years 4 months' imprisonment. The appellant appealed, alleging that the sentence offended the totality principle. The sentence was upheld on appeal. Roberts-Smith JA, with whom McLure JA generally agreed, described the total overall sentence as 'very much towards the lower end of the range'. Wheeler JA said that she was inclined to the view that the sentence 'may well be so lenient as to be inadequate'.

70 The cases relied upon by the appellant provide little guidance. There is not much that can be usefully drawn from such a small number of cases. In any event, their circumstances are materially different from the present case. As serious as the offending was in these cases, in neither case was there a finding that an offence was within the worst category of offences of its kind. Seroka is not an apt comparator in light of the court's comments as to the leniency of the total effective sentence.

71 In the present case, his Honour made express reference to all relevant considerations, including matters of mitigation and to the totality principle which he applied, as illustrated by the orders he made for concurrency/partial accumulation. The ultimate question is whether, in light of all the circumstances, it has been demonstrated that the imposition of a total effective sentence of 11 years was an unjust and unreasonable reflection of the appellant's overall criminality.

72 The appellant's offending, although encompassed in one episode, amounted to the multifaceted and prolonged torture of the victim. It comprised more than the grievous bodily harm with intent in the bush. The victim was deliberately assaulted earlier in time at other places. Overarching the appellant's crimes was the fact that he kidnapped the victim and kept him in a state of terror for a matter of hours.

73 In order to properly reflect the appellant's total criminality, some accumulation of the sentences imposed upon him was required. His Honour did this by the partial accumulation of the sentence on count 2 with the sentence on count 4. The other sentences were all ordered to be served concurrently.

74 Having regard to all of the circumstances of the case, including the guilty pleas and the appellant's youth, it has not been demonstrated that 11 years was an unjust reflection of the appellant's total criminality. Ground 2 has not been made out.

75 Neither of the grounds of appeal have been made out. The appeal must be dismissed.

Legislation (Transitional Provisions) Amendment Act 2008

Chan v The Queen

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (102 paragraphs)

ERIHA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 167 (2 August 2011)

Parties

Legislation Cited (1)

Cases Cited (3)