Sentencing Act 1995 (WA), s 39, s 76

Applicant : Unrepresented Criminal Appellants Scheme

Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Nevermann (1989) 42 A Crim R 347

Vilai v The Queen [1999] WASCA 275

1 MALCOLM CJ: I would refuse this application for leave to appeal for the reasons to be published by Murray J with which I am in entire agreement.

2 WALLWORK J: I agree with the reasons for judgment of Murray J and to the order which is proposed by his Honour.

4 MURRAY J: The applicant was convicted after a trial by jury in the District Court of one offence of doing grievous bodily harm to another. He was sentenced to 4 years imprisonment with eligibility for parole. The trial Judge declined to suspend service of the sentence and recommended that during its service the applicant receive appropriate anger management treatment.

5 The applicant was represented at trial, but not upon his application for leave to appeal where he relied upon an outline of submissions prepared for him by the Unrepresented Criminal Appellants Scheme, but which document is expressed in the first person and quite obviously says what the applicant wished to tell this Court in support of his application for leave to appeal. I mention that because the document makes a variety of factual assertions which are in some cases argumentative, go beyond the matters put before the trial Judge and his Honour's findings for sentencing purposes, and in some respects seem to me to be necessarily contrary to the verdict of guilty returned by the jury.

6 However, counsel at trial was the author of the grounds of the application for leave, which are in the following terms:

"1. The sentencing judge erred in that he failed to impose a suspended prison sentence, when he should have imposed a suspended sentence and did not do so because the learned sentencing judge gave too much weight to matters of deterrence and he failed to consider whether in all the circumstances and taking account of the applicant's background and antecedents a suspended sentence was justified.

2. The sentence of 4 years was excessive in all the circumstances because the learned trial judge gave undue weight to matters of deterrence and failed to give sufficient weight to the following matters:

2.1 the assistance rendered by the applicant to [the complainant] immediately after the collision and thereafter;

2.2 the applicant's apology to [the complainant] almost immediately after the collision;

2.3 the applicant's health, and personal circumstances;

2.4 the evidence led to an inference that it was unlikely that the applicant intended to actually run the complainant down rather than to scare her when he drove his vehicle towards her.

3. The evidence did not support an inference beyond reasonable doubt as found by the sentencing judge that the applicant clearly used the car as a weapon against the complainant to deliberately run her down when there was an alternative reasonable inference that the applicant had used the car to scare the complainant and unintentionally struck her after steering the car towards her."

7 The trial Judge was not asked to obtain, and did not himself order, a pre-sentence report, but he had the benefit of submissions by counsel and he also received in evidence a psychologist's report upon the victim of the offence. His Honour accepted that document as being in the nature of a victim impact statement and he had regard to it.

8 The facts as found by the trial Judge are that the victim was a woman who had had a brief relationship with the applicant, which relationship had ended on the day before the offence was committed. On the day of the offence she visited the applicant at his home on a rural property at Waterloo, just east of Bunbury. She wished to remain one of the applicant's friends, but it appears that the two argued during the day. When, in the evening, the complainant attempted to leave the property, the applicant, for a time, refused to allow her to do so. He struck her, causing her some minor injuries. Eventually he let her go and she proceeded to walk along the road adjacent to the property towards the Southwest Highway.

9 After a few minutes the applicant drove his car along the road in the same direction. The complainant saw him and hid behind a tree. The applicant drove slowly past, apparently looking for her. When he had gone she came out from behind the tree and continued walking. A little later she saw the applicant's car returning along the road towards her. The car drove on its correct side of the road until it approached her. The findings of the trial Judge as to what then happened are as follows:

"...when you saw her, you drove your car to the wrong side of the road deliberately and you struck her in a position a metre or so off the wrong side of the road. It appears that you may well have braked shortly before the impact but your action in driving the car and in using it clearly as a weapon against her is, I find, a most serious example of a method by which grievous bodily harm is inflicted."

10 Ground 3 complains about this finding, but in my opinion it was fairly open to the trial Judge. The applicant drove his vehicle on its correct side of the road until he approached the complainant, at which point the vehicle travelled not only to the incorrect side of the road, but about a metre off the road before striking his victim. There was no indication that the vehicle was out of control. Indeed, the trial Judge thought that the applicant may well have braked shortly before the impact. It was open therefore to conclude that his intention was to strike the complainant with the car, although, of course, it was not asserted that the applicant intended the grievous bodily harm which resulted. However, it is implicit in this finding that the trial Judge rejected the proposition which was put to him by defence counsel in the plea in mitigation that the applicant "was attempting to scare her rather than run her over and unfortunately there was the collision."

11 It was, of course, necessary to find that fact proved beyond reasonable doubt. It was an aggravating circumstance that the applicant deliberately drove his vehicle across the road on to the wrong side and directly towards his victim, even though it was not suggested that he intended to cause the grievous bodily harm which resulted, and even having regard to the fact that the applicant braked shortly before the impact. The trial Judge appreciated the significance of his view. He described the applicant's conduct as a "callous act" and he said:

"...this is a most serious example of causing grievous bodily harm. The use of a car to run someone down is always likely to cause serious injury, if not death."

12 Ground 3 does not suggest that the trial Judge applied the wrong standard of proof in making his finding. Indeed, his Honour said that his finding was "clear". The argument advanced is that the finding could not be made to the required standard when there was an alternative inference reasonably open that the applicant used the car to scare the complainant and unintentionally struck her after steering the car towards her. That must involve the proposition that his intention was that the car should pass in close proximity to her, but should not hit her and that was the way it was put to the trial Judge. The appeal book does not reveal the evidence led at trial, but of course, the trial Judge had the advantage over this Court that he presided at the trial by jury.

13 In my opinion, the significant facts are that the applicant drove the vehicle towards where the woman was walking on the opposite side of the road and off the road surface; that there was nothing remarkable about the speed of the vehicle; that there was no indication that the applicant lost control of the vehicle for any reason; that it was on either version of the facts the case that the vehicle was deliberately steered by the applicant across the road and aimed at the complainant, apparently because the applicant saw her, and that there seems to be no reason why the applicant could not have succeeded in avoiding the complainant had that been his intention. It was open to the trial Judge to reject the inference urged upon him by the defence and draw the conclusion he did.

14 I would not uphold ground 3, but before leaving this aspect of the case I should note that in his written argument the applicant puts before this Court a version of the facts which does not appear to have been debated before the trial Judge. The applicant suggests that had the trial Judge had the advantage of a pre-sentence report (which no party suggested he should obtain), he would have learned that the applicant's health was "a major issue" at the time of the commission of the offence. He suggests that he was then only just recovering from major surgery. He was in receipt of "replacement hormone treatment" and off work by reason of a back injury for which he was being treated with medication to control pain and to relax his muscles.

15 Learned defence counsel touched upon these matters in his submission in mitigation, but in rather different terms. The court was then told that the operation to which the applicant refers occurred about 3 years prior to the trial in early November 2000 and therefore, some 18 months before the date of the offence on 20 May 1999. Although counsel referred to the receipt of hormone treatment, there was no reference to a back injury at work or medication for that and no suggestion that the medication being taken by the applicant had the effect described by him in his written argument that he was affected "both physically and mentally" and "this may explain why I lost control of the vehicle."

16 He returns to the suggested loss of control of the vehicle a little later in the written argument when he says:

"This was not a case of domestic violence, as my sole intention of steering in [the complainant's] direction was to lend her my car as it was raining. The incident occurred at the only place on this particular road to stop a motor vehicle. The combination of my ill health and the wetness and condition of the road rendered me unable to avoid the collision."

This is an entirely self-serving version of the commission of the offence and one which would be inconsistent with the verdict of the jury, if advanced at trial. It is sufficient for present purposes to note that there is no reference to such a version of the facts in the plea in mitigation of defence counsel, the submissions of the Crown prosecutor in respect of sentence, or the remarks made by the trial Judge in passing sentence.

17 In ground 2, which is concerned to advance the proposition that a sentence of 4 years imprisonment was manifestly excessive, there is no suggestion that the trial Judge overlooked any relevant consideration or proceeded upon any wrong basis of fact apart from the alleged intention to frighten, rather than strike the complainant.

18 As to the consequences of the commission of the offence, the trial Judge noted that the victim's pelvis was broken in several places and her knee was badly fractured and required reconstructive surgery. The psychological report records that the complainant lost consciousness when she was struck. She woke to find the vehicle beside her with the applicant sitting in it revving the motor. She was naturally terrified that he would again use the vehicle to run over her and she was unable to move, but no such thing occurred. The applicant got her into the vehicle and took her in it to his house nearby. He there placed her on a bed, and at first, attempted to secure her cooperation when she would inevitably be asked later how she came by her injuries, to say that the applicant had reversed over her in error or by accident while they were on the farm, an occurrence to which the trial Judge referred as an attempt to disguise the true nature of the offence.

19 The applicant, it appears, then telephoned for an ambulance and left the premises before it arrived. It seems therefore, that the trial Judge rejected the proposition advanced in ground 2 that there was any significant mitigation of penalty to be found in the assistance rendered by the applicant and an apology said to have been made to the complainant immediately, or almost immediately, after the commission of the offence. On the contrary, the trial Judge expressed the view, as in my opinion was open to his Honour, that the applicant had "shown no remorse". His predominant concern after the incident appears to have been self-preservation, although the trial Judge did not overlook the help the applicant gave his victim after he injured her.

20 As to the antecedents and personal circumstances of the applicant, the trial Judge noted that the criminal history of the applicant revealed an offence of assault occasioning bodily harm committed in 1994, but his Honour appears to have accepted the defence submission that the circumstances of that case were so different from the case before him that it was proper to pay little regard to it. There was nothing else of note advanced about the applicant's personal circumstances and so nothing in those circumstances which appears to have been of an aggravating character, or particularly mitigatory in effect.

21 It is apparent from his Honour's sentencing remarks that the trial Judge considered the dominant circumstance for sentencing purposes to be the seriousness of the offence described as I have set it out above, and having regard to the harm done to the victim, not only physically, but also, as the report before the court revealed, psychologically. His Honour thought that suitably proportionate punishment was required for the applicant personally and that the sentence chosen must also "provide a message to the public as a deterrent as to what is likely to happen to people who commit offences of this nature." Hence his Honour's view that a 4 year term was appropriate. For myself, having found no error in the sentencing process as such, I find myself unable to conclude that the length of the sentence was so manifestly excessive as to justify interference by this Court.

22 Had it been the case that it was found that the striking of the complainant with the vehicle was negligent, but accidental, then no doubt a non-custodial disposition might have been justified, or even required. Such was the case in R v O'Malley, unreported; CCA SCt of WA; Library No 980715; 9 December 1998 where a Crown appeal against such a sentence was dismissed in a case where the respondent had tried to drive his vehicle between two persons to frighten them and had accidentally struck one. The respondent in that case pleaded guilty, was truly remorseful and was a young first offender. The differences between that case and this are manifest, including, of course, that that was a Crown appeal subject to the care and restraint which this Court habitually exercises in such a case, having regard to the fact that by the Crown's appeal, the respondent is for a second time placed in jeopardy of being deprived of his liberty.

23 That is not to say of course that in an appropriate case a Crown appeal against sentence in a case such as this will not be allowed. An example is R v Hodges [1999] WASCA 278; 8 December 1999. That was a serious case of grievous bodily harm resulting from one blow described as a "king hit". The respondent was a young man with no relevant criminal history, who had displayed considerable remorse, pleaded guilty at the earliest opportunity, and had taken effective steps to address an alcohol problem which was causally linked to the commission of the offence. The Crown appeal was allowed and this Court said that although it thought that in such a case a sentence of 3 years imprisonment to be immediately served would be an appropriate disposition, the term was reduced to one of 2 years imprisonment because it was a Crown appeal. That case was referred to in a later application for leave to appeal by an offender in the case of Kitts v The Queen [2000] WASCA 113; 5 May 2000. There the sentence imposed in circumstances not dissimilar to Hodge's case, was one of 18 months imprisonment. Leave to appeal against that sentence was refused.

24 Of course much depends upon the particular circumstances of the case before the court, but such cases as this will generally attract the serious concern of sentencing courts because by an act of gratuitous violence, serious, potentially permanent and even life-threatening injury is caused to the victim for no good reason which might offer the offender an excuse and reduce the culpability of his or her behaviour. The safety of one's person in our community is seen as a more fundamental human right even than the security of one's property. Threats to that interest will therefore generally be held to demand substantial punishment, not only to deter the offender before the court, but also to deter others. That was the approach taken by the trial Judge in this case and for my part I can see no error in it.

25 That leaves only the question of suspension of the imprisonment. It was urged upon the trial Judge that his Honour should take that course and that submission was opposed by the Crown prosecutor. His Honour agreed and rejected the defence suggestion, obviously considering the case before him to be too serious to permit of such a disposition. Although the first ground of the application suggests that the sentencing Judge erred in failing to give this suggested disposition proper consideration, there is no warrant for the view that his Honour did so.

26 In his written argument the applicant relies upon the recent High Court decision in the case, Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315. So far as that case was concerned with the procedural aspects of the Sentencing Act 1995 (WA), s 6(4), s 39 and s 76 and the question whether or not to order the suspension of service of a term of imprisonment of a particular duration, the judgments of the High Court in Dinsdale are usefully discussed and explained by Parker J, with whom Wallwork and McKechnie JJ agreed, in Latham v The Queen [2000] WASCA 338; 8 November 2000. Those questions need not be discussed in these reasons, having in mind the terms of the particular ground of application under discussion.

27 However, what was made clear in Dinsdale, which is relevant for present purposes, is that the approach formerly taken by some Australian courts, in the context of legislation which requires, as does the Sentencing Act, that a sentencing court decide that in the circumstances of the case the only appropriate disposition would be a sentence of imprisonment of a particular duration before considering whether or not to make an order of suspended imprisonment, may have involved error. Formerly, the courts, recognising that a discretionary judgment was involved, would often look to see what factors there were in the case which indicated that an order of suspended imprisonment should be made, rather than to impose imprisonment to be immediately served. The cases refer to such considerations as that the suspension of imprisonment would aid an ongoing process of rehabilitation, among many others affecting the form and gravity of the sentencing disposition to be chosen by the court.

28 The leading authorities in this State are R v GP (1997) 18 WAR 196 and R v Liddington (1997) 18 WAR 394. I referred to those cases in the present context in my judgment in Kitts and at par [10] I said:

"In Liddington, while there may have been a difference in emphasis between various members of the court as to the matters which might support the use of suspended imprisonment and the circumstances in which that disposition might be considered to be appropriate, there was no disagreement between their Honours that suspended imprisonment is simply the second most severe sentence available to the court and is to be used in preference to the ultimate disposition of imprisonment to be immediately served when the circumstances make it appropriate to do so. That is, after all, merely consistent with the Sentencing Act 1995 (WA), s 6(4) and s 39(3) which effectively express the principle that a sentence of imprisonment to be immediately served is the sentence of last resort only to be employed when that is the only sentence which may be justified having regard to the seriousness of the offence and the requirement for the protection of the community."

29 In Latham at par [9] Parker J explained the contribution of the High Court in Dinsdale to the debate about the option of the use of suspended imprisonment, in the following terms:

"Rather than traverse the arguments it is now sufficient to note that the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially to the effect which suspension would have on rehabilitation of the offender is not an appropriate approach. Rather, the same considerations that are relevant to the imposition of a term of imprisonment are to be revisited in determining whether to suspend that term. It would appear that 'double weight' may thus be attributed to factors relevant to the offence and to the offender - whether aggravating or mitigating - which may influence or determine the decision whether to suspend the term of imprisonment."

30 Taking that approach to the question whether or not the trial Judge is established to have erred in this case by not suspending the imprisonment he imposed, I would start from the point dictated by the Sentencing Act, s 76(2) that:

"Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."

The purpose of that provision in the statutory context is clear and important. It is designed to stop the use of suspended imprisonment, with all the potential consequences which may flow from a breach of the suspension by further offending, in a case which otherwise would not warrant the punishment of imprisonment at all.

31 But I have expressed the view that in my opinion it can not be discerned that his Honour the trial Judge in this case in any way erred in his conclusion that the punishment of imprisonment for the term of four years was the only appropriate sentencing disposition open to him. Then, so far as the question of suspension was concerned, it seems to me that consideration of the seriousness of the offence in the circumstances of its commission, the lack of remorse, the self-interest displayed by the applicant after the offence was committed, and the lack of any strength in any mitigatory circumstances make it impossible to conclude that the exercise of the discretion not to suspend the punishment miscarried in this case.

32 For those reasons I would dismiss the application for leave to appeal.