Criminal law - Appeal against sentence - Convicted after trial of one count of grievous bodily harm - Sentence of 18 months' immediate imprisonment - Whether judge erred in finding the appellant conceded immediate imprisonment appropriate - Manifest excess - Application for bail pending appeal - Turns on own facts

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

Fernandes v The State of Western Australia [2009] WASCA 227

HTD v The State of Western Australia [2018] WASCA 202

Peake v The State of Western Australia [2015] WASCA 239

The State of Western Australia v Ellement [2016] WASCA 1

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

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

Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187

1. Before the court are the appellant's application for bail pending appeal, filed 8 November 2018, and his application for leave to appeal against sentence.
2. For the reasons that follow, the application for bail pending appeal should be dismissed and the application for leave to appeal should be refused.

1. The appellant was charged on an indictment in the Albany District Court that, on 15 April 2017 at Narrogin, he unlawfully did grievous bodily harm to Allan Robert Lee.
2. On 19 September 2018, after a trial before Stevenson DCJ and a jury, the appellant was convicted as charged. Later that day, he was sentenced to 18 months' immediate imprisonment with eligibility for parole.
3. Early in the sentencing proceedings, his Honour made 'provisional' findings of fact and asked counsel to address him in the event there was any 'concern' about them.[1] Neither counsel challenged his Honour's 'provisional' findings. Those findings were, in effect, incorporated into his sentencing remarks.[2] They may be summarised as follows.
4. During the afternoon of 15 April 2017, the appellant, his wife and his two young children went to a family member's house in the town of Narrogin to watch AFL football on television. This function was the culmination of a long day of social activities. The appellant became extremely intoxicated.[3]
5. At about 9.45 pm, the appellant was being driven home by his wife. He was seated in the front passenger seat. In the rear seat were his two children.[4]
6. While driving towards their home along Lock Street in Narrogin, the appellant and his wife observed the victim, Mr Lee, and his friend, Christopher Ryan Leighton, walking along the street.[5] Mr Lee was walking Mr Leighton back to where Mr Leighton was living. Both Mr Lee and Mr Leighton were loud and making a noise.[6] Save for a glass of port he had consumed, Mr Lee had not been drinking. However, Mr Leighton was plainly affected by alcohol.[7] The appellant and his wife heard Mr Lee and Mr Leighton make comments which they took to have been directed towards them. His Honour made no finding as to whether or not those remarks were offensive.[8] In any event, the vehicle in which the appellant was travelling turned around and drove to where Mr Lee and Mr Leighton were, in order to confront them about what they had said.[9]
7. When the vehicle pulled up, the appellant verbally confronted Mr Lee and Mr Leighton about their perceived conduct.[10] Mr Leighton went over to the vehicle and engaged in what his Honour described as 'aggressive and confrontational ... discourse' with the appellant.[11] The appellant got out of the car to confront Mr Leighton. They began to push and shove each other.[12] His Honour found that the appellant started the physical confrontation.[13] As it escalated, Mr Lee attempted to defuse the situation by coming between the appellant and Mr Leighton.[14] The appellant and Mr Leighton were swearing and yelling at each other. Eventually, the appellant, in order to 'get at' Mr Leighton, punched Mr Lee in the right jaw with such force as to render him unconscious so that he fell into a nearby garden bed.
8. A short time later, a police officer attended the scene and found Mr Lee in the garden bed in a semiconscious state, with blood coming from his mouth.[15]
9. Mr Lee was taken to the local hospital for treatment. On examination, he was found to have a swollen right cheek and bruising in the region of his eye, pain on palpitation over the right jawbone and limited ability to open his mouth. He was also missing a right lower molar tooth.[16] Further investigations revealed that his right jaw had been fractured, which required surgical intervention, including the open reduction and internal fixation of the right mandible and removal of two teeth.[17]
10. His Honour found that, although Mr Leighton had acted provocatively and with aggression towards the appellant, Mr Lee had acted as a peacemaker.[18] He also found that Mr Leighton's behaviour did not excuse or condone what the appellant did to Mr Lee.[19]
11. His Honour described the offence as being 'yet another example of alcohol-fuelled violence in the community' which required the imposition of a sentence that reflected the objective of general deterrence.[20]

1. At the time of the offence, the appellant was 35 years of age. He is married and has eight children. Since leaving school, he has generally been gainfully employed and has been regarded as a mentor to others in the past.[21] His Honour found that the appellant was a person of previous good character and has 'real prospects of rehabilitation'.[22] He facilitated the efficient running of his trial by making admissions.[23] The appellant has no relevant convictions.

1. No victim impact statement was provided to the court, but the medical evidence revealed that Mr Lee will live the rest of his life with a surgical plate in his mandible and that he must be careful not to sustain further head injury in the future. In addition, he lost three teeth as a consequence of the appellant's actions. His Honour accepted that the injuries were 'towards the lower end of the range of injuries constituting grievous bodily harm', but they were, nevertheless, serious.[24]

1. There are two proposed grounds of appeal which read:
   1. The sentencing Judge erred when he approached the sentencing exercise on the basis defence counsel conceded immediate imprisonment was appropriate;

Particulars

1.1 Defence counsel positively contended for a suspended term of imprisonment.

1. The sentence of immediate imprisonment imposed was, in all the circumstances, manifestly excessive;

Particulars

2.1 The appellant's antecedents;

2.1 [sic] The criminality involved;

2.1 [sic] The sentence imposed in, broadly, comparable cases.

1. In his plea in mitigation, defence counsel submitted that the sentencing judge should impose a suspended term of imprisonment.[25] He did not submit that anything less than a term of imprisonment was appropriate. He did not concede that the only appropriate sentence was an immediate term of imprisonment.
2. In support of this ground of appeal, the appellant relies upon the following portion of the sentencing remarks:[26]

It is, I understand, properly considered [sic] by you that the only sentence that can be imposed initially is an immediate term of imprisonment by reason of the objective seriousness of the offence, the need to send a very strong message to the community that violence will not be tolerated and to hopefully deter others from committing violent acts in the community.

1. The appellant argued that the word 'considered' had been mis-transcribed and should correctly read 'conceded'. We accept that there has been a mis-transcription and that the word 'considered' should be read as 'conceded'. Having regard to defence counsel's plea in mitigation, it is clear that his Honour was in error in stating that it had been conceded by the appellant that the only appropriate sentence was an immediate term of imprisonment.
2. However, the real issue is whether his Honour's error was material; that is, whether it affected, or was capable of affecting, the sentence actually imposed by the sentencing judge.[27]
3. Shortly after his Honour made the statement impugned by ground 1, he proceeded to consider whether it was appropriate to suspend the term of imprisonment. He did so without further reference to any 'concession' made on the appellant's behalf. His Honour's consideration of whether or not to impose a suspended term of imprisonment was completely orthodox and conformed with the requirements of the Sentencing Act 1995 (WA) and with what was said by the High Court in Dinsdale v The Queen.[28] His Honour said:[29]

The court is not permitted to impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community otherwise requires it. In this case, certainly the first condition is met and a term of imprisonment must be imposed. If the court reaches a conclusion that a sentence of imprisonment must be imposed, it is obliged to consider afresh whether the sentence may be suspended under s 76 of the Sentencing Act, having regard to the nature of the offence and the need for the protection of the community.

In this regard, the court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In my view, having regard to all of the sentencing considerations which apply to the circumstances of this particular case, referable to you personally and the offence itself, the appropriate sentence is an immediate term of imprisonment of 18 months. In my view, that is at the lower end, particularly after trial, for a serious offence of this nature.

I am satisfied, having regard to the same considerations afresh, that it is not appropriate to suspend or conditionally suspend the term of imprisonment. In my view, the objective seriousness of your offending is so serious that a term of [immediate] imprisonment must be served.

1. It is clear that his Honour did not sentence the appellant to a term of immediate imprisonment based on any concession he perceived to have been made by defence counsel. Indeed, it may well be, when the impugned passage of his Honour's sentencing remarks is considered in its context, that his Honour's use of the word 'immediate' in the impugned passage was a slip of the tongue, especially having regard to the word 'initially' that his Honour uttered shortly before the word 'immediate'. It may well be inferred that the concession his Honour was referring to was a concession implicit in defence counsel's submission that a term of imprisonment, but not an immediate term of imprisonment, was the only appropriate outcome.
2. On the assumption that his Honour made the error alleged in ground 1, it is clear, based on the rest of his Honour's sentencing remarks, that it was not material to the outcome. The proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused.

1. At the hearing of the application for leave to appeal, counsel for the appellant made it clear that the complaint embodied in proposed ground 2 is not to the length of the term of imprisonment; rather, the challenge is only to the type of sentence that was imposed. The appellant contends that a suspended sentence, either with or without conditions, should have been imposed.
2. A ground of appeal, such as ground 2, which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, 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 on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
3. The discretion conferred on sentencing judges is, of course, of fundamental importance, and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
4. The sentencing principles relevant to the imposition of a suspended term of imprisonment, with or without conditions, have been explained in a number of cases, most recently in HTD v The State of Western Australia.[30] We adopt that analysis without repeating it. It is enough to say that a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. Further, the discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation or other circumstances personal to the offender. The objective circumstances of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
5. The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Criminal Code (WA), is 10 years' imprisonment.
6. In The State of Western Australia v Taylor, Buss JA made these remarks:[31]

In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully 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 at [9] - [11]. See also Hussaini v Western Australia [2009] WASCA 207 at [23] (Wheeler JA).

McLure JA made these comments in Trompler at [38] about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:

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 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 Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327).

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

In Trompler at [19], Wheeler JA observed:

I would note that in Camilleri (Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394), 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.

In Mercanti at [35], Miller JA (Wheeler and Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v Western Australia [2012] WASCA 141; Holden v Western Australia [2011] WASCA 238; Hobby v Western Australia [2011] WASCA 197; Steel v Western Australia [2010] WASCA 118; Ward (No 2).

1. It was submitted on behalf of the appellant that it was not open to the sentencing judge to be positively satisfied that it was inappropriate to suspend or conditionally suspend the term of imprisonment, having regard to:

(a) the appellant's favourable personal circumstances;

(b) the offence was towards the lower end of the range of seriousness of offences of doing grievous bodily harm; and

(c) the outcomes in two cases: Yaqubi v The State of Western Australia [No 2][32] and The State of Western Australia v Ellement.[33]

1. In our opinion, it was open to his Honour to be positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment he imposed. While the injuries sustained by the victim were towards the lower end of the scale of seriousness of injuries that constitute grievous bodily harm, they were nevertheless serious. The appellant fractured Mr Lee's jaw, resulting in the insertion of a surgical plate which will be in place for the rest of Mr Lee's life. Further, Mr Lee has lost three of his teeth. The nature and consequences of these injuries cannot be lightly dismissed.
2. While it is true that the appellant delivered only one blow to the victim, that blow was delivered to Mr Lee's face and was delivered with such force that it knocked him into a garden bed and rendered him unconscious. Such a forceful blow, in circumstances where the victim had no real opportunity to defend himself, had the potential to inflict more serious injury than in fact occurred.
3. The circumstances in which the appellant punched the victim do him (the appellant) no credit. Whatever was said by Mr Leighton and Mr Lee as the appellant's car passed them did not justify the confrontation which the appellant initiated. The appellant's intoxication, while providing an explanation for the appellant's conduct, cannot, in any way, mitigate what occurred. At the time Mr Lee was struck, he was attempting to stop the physical confrontation between the appellant and Mr Leighton escalating. Mr Lee was, as his Honour found, acting as a peacemaker. Mr Lee offered no provocation to the appellant whatsoever. The blow struck by the appellant was not, in any way, justified or excusable.
4. The appellant's favourable personal circumstances must be acknowledged. He is sorry for what he did. His prospects of rehabilitation are good. The appellant is unlikely to offend in a similar way again.
5. Of course, the appellant does not have the advantage of the mitigation that a plea of guilty would have undoubtedly provided.
6. The two cases cited by the appellant's counsel are not of assistance and are distinguishable from the present case.
7. In Yaqubi, the appellant, who was 18 years of age at the time of the offence and who pleaded guilty, was sentenced to 16 months' immediate imprisonment for one count of grievous bodily harm. The appellant and the victim in that case had been involved in a verbal confrontation which culminated in the appellant forcefully punching the victim to the left side of his face, causing his mouth to bleed and fracturing his jaw in two places. The victim made a full recovery. Six weeks after the incident involving the victim, the appellant committed a common assault on another young man.
8. There are obvious material differences between Yaqubi and the present case, most notably that the appellant in the present case does not have the advantage or youth or an early plea of guilty. Those differences do not favour the appellant in the present case. Further, the injuries inflicted on the victim by the appellant in the present case were worse than the injuries inflicted by the appellant in Yaqubi.
9. In The State of Western Australia v Ellement, the respondent was convicted on his plea of guilty of one count of aggravated grievous bodily harm, an offence which carries a maximum penalty of 14 years' imprisonment. In that case, the respondent, who was 25 years of age, pushed his 62-year-old victim to the floor of her house, fracturing the neck of her femur, which necessitated a total hip replacement. After a trial of issues, the respondent was sentenced to 18 months' immediate imprisonment suspended on conditions for 18 months. This court held, on appeal, that this sentence was inadequate and imposed a sentence of 18 months' immediate imprisonment, which Mazza JA (with whom Buss JA agreed) commented, 'could be said to be lenient'.[34] The sentence of 18 months' immediate imprisonment was imposed having regard to the position that the State took in that appeal, that it did not seek to disturb the length of the sentence originally imposed.
10. The present case is distinguishable from The State of Western Australia v Ellement. Although the respondent in that case was convicted of a more serious offence and he pleaded guilty, his push to the victim was less forceful than the blow in this case.
11. In addition to the cases cited by the appellant, the court has had regard to the two cases cited by the respondent in opposing the application for bail, being Peake v The State of Western Australia[35] and Ward v The State of Western Australia [No 2].[36] These cases involved offenders who, like the appellant, were convicted of grievous bodily harm after trial in circumstances where the victim in each case offered the offender no provocation. The cases are of limited assistance because, in each case, the victim suffered more serious injuries than Mr Lee. However, we note that, in each case, a term of immediate imprisonment of 3 years was undisturbed by this court.
12. Having had regard to:

(b) the objective facts and circumstances of the offending;

(c) the standards of sentencing customarily observed;

(e) all other relevant sentencing considerations including the need to impose a sentence which deters others from engaging in the kind of senseless street violence perpetrated by the appellant,

we are satisfied that the imposition of the sentence of 18 months' immediate imprisonment was not unreasonable or plainly unjust. The sentence was within the range open to the sentencing judge on a proper exercise of his discretion. The sentencing judge was entitled to be positively satisfied that it was inappropriate to suspend or conditionally suspend the term of imprisonment. His Honour did not err in failing to impose a term of suspended imprisonment with or without conditions.

1. In our opinion, there is no merit in ground 2. Leave to appeal should be refused.

1. As neither proposed ground of appeal has any reasonable prospect of succeeding, the appeal must be dismissed. It is, accordingly, unnecessary to consider the application for bail pending appeal. The application should be refused.

1. The orders we would make are as follows:
   1. The application for bail is dismissed.
   2. Leave to appeal on grounds 1 and 2 is refused.
   3. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[27] Fernandes v The State of Western Australia [2009] WASCA 227 [9], [10] (McLure P; Owen JA & Wheeler JA agreeing).

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

[30] HTD v The State of Western Australia [2018] WASCA 202 [43], [45] - [53].

[31] The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 [35] - [39] (McLure P & Mazza JA agreeing).

[32] Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187.

[33] The State of Western Australia v Ellement [2016] WASCA 1.

[34] The State of Western Australia v Ellement [51].

[35] Peake v The State of Western Australia [2015] WASCA 239.

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