Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Doing an act with intent to harm - Criminal Code s 304(2) - Motor vehicle used deliberately to run down person - Intended as act of revenge against offender's partner - Injuries not life-threatening - Plea of guilty - Sentence of 30 months' immediate imprisonment not manifestly excessive

Appellant : Paxman and Paxman Barristers & Solicitors

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

Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

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

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

Yates v The State of Western Australia [2008] WASCA 144

Zhang v The State of Western Australia [2013] WASCA 121

1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. The applicant was convicted in the District Court, on her own plea, of, with intent to harm, doing an act as a result of which the life, health or safety of a person is or was likely to be endangered, contrary to s 304(2) of the Criminal Code (WA). She was sentenced by Stone DCJ to 30 months' immediate imprisonment.

2 The applicant seeks leave to appeal against the sentence on the ground that it was manifestly excessive.

3 The offending arose in the context of a domestic dispute between the applicant and her then partner, Mr Tama Pihama. The complainant was the mother of Mr Pihama's two children, who were at the time of the offence aged 9 and 7. The complainant and Mr Pihama shared custody of the children, who stayed with Mr Pihama every weekend. At the time of the offence, the applicant and Mr Pihama had been in an 'on-off' relationship since 2010 and were living together in a house on Trappers Drive, Woodvale.

4 On 3 February 2013, following a breakdown in their relationship, Mr Pihama sent a text message to the applicant asking her to remove her belongings and leave the Woodvale house. The applicant contacted Mr Pihama and made threatening comments towards his children and the complainant. Mr Pihama's children were at the house at the time and as a result of the applicant's threatening comments, Mr Pihama contacted the complainant and asked to her collect the children. The applicant packed her belongings and left the house.

5 The complainant arrived at Mr Pihama's house at about 5.20 pm. She parked her car, a Holden Commodore, on the verge at the front of the house and walked towards the house. As she did, she noticed the applicant was sitting in the driver's seat of a Toyota Camry parked near the front of the house. Mr Pihama was speaking to the applicant through the driver's window.

6 As the complainant walked up the driveway towards the house, the applicant reversed her car so that it was pointing towards the complainant and then drove towards the complainant. To avoid being struck by the applicant's car, the complainant ran around another vehicle which was parked in the driveway. The applicant then reversed her car in an arc, hitting that vehicle. The applicant reversed again, this time into the complainant's Commodore, causing damage. The applicant then drove away in a northerly direction on Trappers Drive.

7 Once the applicant had driven away, the complainant and Mr Pihama walked to the complainant's Commodore to inspect the damage. The complainant went to the driver's side door which was closest to the road and removed the keys from the ignition through the open driver's window.

8 By this time, the applicant had turned her car around and was now driving along Trappers Drive in a southerly direction. The applicant saw the complainant standing on the kerb next to the Commodore. The applicant crossed over the median strip and drove in a southerly direction on the wrong side of the road towards the complainant. The applicant hit the complainant from behind, causing her to flip into the air over the bonnet of the applicant's car as it continued forwards. The complainant's shoulder struck the windscreen of the applicant's car, causing it to smash. The complainant then fell onto the grass verge and the applicant drove off at speed. An eye witness to the events estimated the applicant's speed at the time of impact to be about 40 - 50 km per hour.

9 The complainant was taken to Joondalup Health Campus by ambulance. She sustained bruising and grazing to her body, and has continuing back pain and psychological injuries as a result of the incident.

10 The sentencing judge described the relevant facts. His Honour noted the applicant's actions were deliberate and persistent, that she had driven at speed at the complainant, and that she did not stop to assist the complainant after striking her with the motor vehicle. His Honour concluded that the nature and seriousness of the applicant's intent to harm was at the high end, and the potential, as distinct from the actual, consequences of her conduct placed the offending in the serious bracket for this type of offending.

11 His Honour observed that the applicant was 25 years of age and single, having separated from Mr Pihama. The applicant enjoyed a close relationship with her family. She had left school at the age of 15 after completing Year 10. Subsequently, while on home detention, she had completed a Certificate II in Business Skills and other online courses. The applicant was unemployed at the time of sentencing and had what his Honour described as 'a limited history of employment'.

12 The applicant had a minor record of traffic convictions but this was her first conviction for a serious offence. She had demonstrated remorse, and had pleaded guilty at the first opportunity. For that plea, his Honour allowed a deduction of 25% from the sentence that would otherwise have been imposed.

13 His Honour accepted that the applicant's offending was impulsive and opportunistic, and occurred while she was in a highly agitated state. He found that the applicant's mental illness had affected her judgment at the time of the offence. In that connection, his Honour referred to a psychiatric report in which it was noted that the applicant had a long history of depression which had been poorly treated. She presented as having a major depressive disorder with psychotic episodes and mood disturbance secondary to substance abuse. The applicant had a history of marijuana and amphetamine-based substance abuse. She had been using those drugs the day before the offence and was 'coming down' from them at the time of the offending. At the time, the applicant's mood disorder would also have been exacerbated by her failure to take the antidepressants prescribed by her GP. The psychiatrist considered that the applicant's mental health issues affected her ability to exercise appropriate judgment and to make calm and rational decisions. The sentencing judge noted that a psychological report was to similar effect.

14 The applicant was sentenced to 30 months' immediate imprisonment, with eligibility for parole.

15 The sole ground of appeal was that the sentence was manifestly excessive.

16 In determining whether a sentence is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, 20 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 crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

17 While for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [39] - [40]. Moreover, in considering the general range of sentences imposed in other cases, caution must be exercised because inevitably there will be differences in the circumstances of the offences and the offender. That is of particular significance in offences under s 304(2) of the Criminal Code, as there may be great variations in the nature and circumstances of the offending. There is no tariff or usual sentencing range for offences against s 304(2): The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [149].

18 In sentencing for an offence under s 304(2), relevant factors will include, in particular, the nature and seriousness of the offender's 'intent to harm', and the nature and seriousness of the 'bodily harm' caused to the particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be. The potential (as distinct from the actual) consequences of the offender's conduct will also be relevant. See BLM [136].

19 In support of the contention that the sentence was manifestly excessive, counsel for the applicant referred for comparative purposes to two cases involving offences committed contrary to s 304(2) by use of a motor vehicle, namely, The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 and Yates v The State of Western Australia [2008] WASCA 144.

20 Wallam was a State appeal against sentence and was decided under the principles which then applied to such appeals. In that case, the offender had shortly before the offence made oral threats against the victim, apparently arising out of an inter-family dispute. He had then deliberately driven a car at speed directly at the victim, striking him with the left front of the car and causing him significant but not permanent injuries. The offender drove away without stopping. The offender, who had had a dysfunctional upbringing, showed no contrition and had an extensive criminal record, including convictions for acts of violence. A sentence of 12 months' imprisonment for causing bodily harm with intent, imposed after a plea of guilty, was set aside and a sentence of 3 years' imprisonment imposed.

21 In Yates, the offender had been pursued and confronted by two men, one wielding a crowbar, on a road near the home of the offender's former partner. The offender had been pursued following earlier altercations instigated by the offender after he had discovered that a friend - one of the two men then pursuing him - had formed a relationship with the offender's former partner. When confronted, the offender had driven a motor vehicle directly at the man wielding the crowbar. The victim's injuries were somewhat more serious than in the present case, but again were not permanent. The offender was convicted after trial. For sentencing purposes, it was found that the offender's offending resulted from his justifiable hurt and sense of betrayal arising from the conduct of his friend and his former partner. The offender was sentenced on the basis that his intent to harm was formed after he was confronted by the complainant wielding the crowbar. On appeal, a sentence of 6 years' imprisonment was set aside and a sentence of 3 years' imprisonment imposed.

22 Insofar as Wallam and Yates are of any assistance, they do not support the proposition that the sentence imposed in the present case was manifestly excessive.

23 Some reference was also made to Zhang v The State of Western Australia [2013] WASCA 121, but the circumstances of that case are a long way removed from the present case. In Zhang, the applicant was convicted after trial of an offence contrary to s 294(1) of the Code by deliberately running down the victim at speed, causing very serious life-threatening injuries. The sentence imposed at trial of 10 years and 6 months' imprisonment was reduced to 8 years and 6 months' imprisonment.

24 In our view, the appeal has no reasonable prospect of success. The offending in this case was serious. A short time earlier, the applicant had deliberately driven at the complainant, who had managed to evade the vehicle. Then, having initially driven away, the applicant had returned and deliberately driven at speed at the complainant, who was facing the other way and did not see the vehicle coming. The applicant's plain intention was to cause the complainant bodily harm and in the circumstances it was simply a matter of good fortune that the complainant's injuries were not much more serious or even life-threatening. After striking the complainant, the applicant drove away without making any attempt to render assistance.

25 The offending was apparently intended as an act of revenge against Mr Pihama for asking the applicant to leave the Woodvale house, rather than as a result of any particular grievance against the complainant. The complainant was simply unfortunate enough to be the means by which the applicant chose to exact her revenge on Mr Pihama.

26 There were some mitigating factors, including the applicant's early plea of guilty and her mental state at the time. Nevertheless, in the circumstances a sentence of 30 months' immediate imprisonment clearly fell within a sound exercise of the sentencing discretion.

27 Leave to appeal is refused and the appeal dismissed.