Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Offence of doing an act with intent to harm as a result of which life or safety was likely to be endangered - Sentence of 4 years 6 months' immediate imprisonment - Whether manifestly excessive

Appellant : Alana Padmanabham, Barrister & Solicitor

Eriha v The State of Western Australia [2011] WASCA 167

Kaokula v The State of Western Australia [2016] WASCA 198

Lawrence v The State of Western Australia [2015] WASCA 187

Penny v The State of Western Australia [2016] WASCA 52

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

The State of Western Australia v Redman [2009] WASCA 1

1 The appellant appeals against a sentence of immediate imprisonment of 4 years and 6 months imposed on him for an offence of doing an act with intent to harm as a result of which the life, health or safety of others was likely to be endangered contrary to s 304(2)(b) of the Criminal Code (WA).

2 For the reasons that follow, we would dismiss the appeal.

3 The facts of the offending were not and are not in dispute.

4 The facts, as outlined by the State and accepted by the defence, are accurately summarised in the appellant's submissions, and were as follows:

(1) At 6.00 am on 30 December 2014, the residents of the address at which the offence was committed were in their bedroom, which is situated at the front of the house.

(2) The appellant drove to the premises in a silver Ford Territory with another person, Ms Courie.

(3) The appellant had been to the address once before and knew the victims.

(4) Ms Courie got out of the car and knocked loudly on the front door. She returned to the car and then knocked on the front door again. There was no response.

(5) Ms Courie went back to the car and spoke with the appellant.

(6) The appellant got out of the passenger seat and into the driver's seat of the car.

(8) The offender reversed to the top of the driveway where he stopped. He then accelerated towards the house, driving deliberately directly at the wall of the victims' bedroom.

(9) Half of the car penetrated through the window and into the bedroom, causing extensive damage to the structure of the house.

(10) Having seen the offender driving towards the bedroom on close circuit television, the victims ran out of the bedroom just in time to avoid any injury.

(11) While they were not injured, their lives, health and safety were endangered by the appellant's actions.

(12) The appellant got out of the car and went through the victims' home, damaging some doors and upturning some property.

(13) Police attended and located the appellant a short distance from the house.

(14) The appellant's intention in driving the car into the house was to cause the victims a pecuniary detriment.

(15) The appellant had an honest but unreasonable belief that no-one was inside the home at the time.

5 In the course of the plea in mitigation defence counsel submitted the reason that the appellant had attended the victims' address was to return the silver Ford Territory. This was disputed by the prosecution and not accepted by the sentencing judge. Rather, the sentencing judge indicated that he was satisfied that the appellant had gone to the house to have a confrontation with the victims over the disputed transaction concerning the motor vehicle.[1] The sentencing judge made a finding to that effect.[2]

6 The offender was born in December 1986, and so was 28 years old when the offence was committed and 29 years old when he was sentenced in April 2016. The appellant saw, firsthand, significant violence in his formative years. He was born in Rwanda. His parents and he fled to Kenya when he was very young and lived in what was effectively a refugee area. His parents and he came to Australia as refugees when he was about 8 years old. The appellant's father was convicted of attempted murder of the appellant's mother. The appellant was present while this occurred.

7 The appellant left school in or about year 8. The appellant had completed about two years of a bricklaying apprenticeship by the time he was sentenced.

8 The appellant has a significant criminal record including a substantial record of violent offences. In 2005 he was imprisoned for offences of grievous bodily harm and unlawful wounding. In 2006 he was convicted of resisting arrest and assaulting a public officer and other offences. In 2010 he was convicted of a number of offences including wilfully unlawfully destroying or damaging property, carrying a firearm with no licence, and carrying or possessing an article with intent to cause fear. In April 2011 the appellant was sentenced to imprisonment for offences of being armed in a way that may cause fear and threat to kill.

9 The appellant was released from prison about six or seven weeks before he committed this offence. He was not on parole.

10 Given that the sole ground of appeal is that the sentence imposed was manifestly excessive, it is not necessary to detail all aspects of the sentencing remarks.

11 The judge found that the appellant's intention in going to the home was a continuation of a dispute that had been going on concerning the vehicle and money that was owed for it, and that he intended in some way to confront the occupants of the home about that. The judge found that the appellant felt a sense of grievance and that that motivated him to deliberately smash the car into the bedroom with the intention of causing significant damage to the property which would in turn entail significant financial detriment to the owners.[3]

12 The sentencing judge identified the following aggravating features of the appellant's offending:[4]

(1) The appellant used a motor vehicle as a weapon in a sense to cause considerable damage to the house.

(2) There was, as there always is, a significant risk that people would be in their home at 6 o'clock in the morning. While the appellant believed there was no-one home, that belief was unreasonable.

(3) The consequences of the offending could have been horrific; there could have been loss of life or serious injury. That is the risk element in this type of offending.

(4) His actions in targeting the bedroom were deliberate.

(5) The conduct of the appellant must have caused considerable fear to the occupants of the bedroom.

13 The judge outlined the significant psychological impact of the offending on one of the victims.

14 The judge referred to the appellant's personal circumstances including his exposure to extreme violence as a young child.

15 The judge referred to the appellant's history of offending, including violent offending, concluding that there was, as a consequence, a need for specific deterrence to the appellant and for weight to be given to the protection of the community.[5]

16 The sentencing judge stated that he gave a 10% discount for the appellant's plea of guilty.

17 The judge found that the appellant's offending was serious and was in the upper range of seriousness for a case of intent to harm by causing the victim pecuniary detriment.[6]

18 The judge found that the appellant's conduct was highly dangerous and that, while the appellant did not foresee a risk of injury, the lives of people were likely to be endangered and there could have been death or serious injury to the occupants.[7]

19 The judge imposed a term of immediate imprisonment of 4 years 6 months, with eligibility for parole, and backdated to commence on 30 December 2014, the date on which the appellant went into custody.

20 The appellant appeals on one ground of appeal, namely that the length of sentence imposed was manifestly excessive having regard to the factual basis and intention upon which the appellant was sentenced.

1. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2. A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to 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, and the personal circumstances of the offender.
3. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. The guidance afforded by comparable cases is flexible rather than rigid. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
4. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

22 The maximum penalty for the offence of which the appellant was convicted is 20 years' imprisonment.

23 Section 304 of the Criminal Code has been in operation since May 2004. There have been a limited number of appeals against sentence for offences against s 304(2). That section covers a wide variety of conduct of widely differing levels of seriousness. That must be borne in mind in considering whether a case is relevantly comparable for consistency purposes.[8]

24 Among the factors relevant to sentencing for an offence under s 304(2) of the Criminal Code are:

(1) the nature and seriousness of the offender's intent to harm;

(2) the nature and seriousness of any bodily harm caused to a 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; and

(3) the potential, as distinct from the actual, consequences of the offender's conduct.[9]

25 The appellant submits that the following features of his offence, taken in combination, inform where his offence sits in the scale of seriousness of offences of this kind, and support the conclusion that his sentence was manifestly excessive:

(1) he had an intent to cause pecuniary damage, not to do bodily harm and, as the State conceded before the sentencing judge, the appellant's offence would have been more serious if he had an intent to do bodily harm;

(2) an offence under s 304(2) in which actual bodily harm is caused is more serious than one in which no bodily harm is caused, but life, health or safety is endangered or, as in this case, likely to be endangered; and

(3) The appellant's offence (as charged) involved likely not actual endangerment of the victims, and was thereby less serious.[10]

26 The first proposition can be accepted insofar as it contends that the appellant's offence would have been more serious if he had done what he did with an intent to do bodily harm. However, insofar as it was put as a universal proposition applicable to a comparison of different offences under s 304(2),[11] we do not accept it. Given the structure of s 304(2), and given the wide variety of offences that may be covered by it,[12] the seriousness of offences under s 304(2) cannot be assessed or compared by a singular focus on the nature of the intended harm. All of the circumstances of the case must be considered.

27 As to the second proposition, the following observations made in Kaokula are apposite to this case:[13]

The appellants' submissions emphasised the absence of actual physical harm in this case, in contrast to several of the cases in which substantially similar sentences were imposed (for example, Delavale; Lawrence and BLM). However, an offence against s 304(2)(b) involves endangering life, health or safety and does not necessarily involve bodily harm. The structure of s 304(2) reveals that the potential risk to life, health and safety may be equally as important as the actual harm caused by the person's act done with intent to harm. As we have said, s 304(2) covers a wide variety of conduct. In this light, it is wrong to place a singular emphasis on the presence or absence of physical injuries.

28 Kaokula and Penny v The State of Western Australia[14] demonstrate that substantial terms may be imposed for an offence under s 304(2) in which life or safety was actually or likely to be endangered, but where there is no bodily harm.

29 The appellant referred to a number of sentencing decisions under s 304(2), substantially all of which were summarised by McLure P in Penny.[15] We adopt that outline without repeating it. Since then, this court has also decided Kaokula. Consideration of other sentencing decisions under s 304(2) does not establish that the sentence imposed on the appellant was manifestly excessive. None of the cases is directly comparable to the present case. As the appellant pointed out, none of the cases involved an intention to do pecuniary damage. When the difference in the circumstances of the cases and the personal circumstances of the offenders are taken into account, the sentence imposed on the appellant is not inconsistent with the sentencing standards for offences under s 304(2).

30 The appellant submits that the most comparable case to the present one is Lawrence v The State of Western Australia.[16] In that case, the offender was convicted after trial of an offence against s 304(2)(b) of the Code. The offender punched the complainant in the back of his head, causing him to fall to the ground. While the complainant was on the ground and lapsing in and out of consciousness, the appellant and a co-offender kicked and stomped on the complainant. The complainant suffered significant injuries which required hospitalisation and had residual effects. The offender was aged 34 at the time of the offence, had a lengthy criminal history and intended to, and did, inflict bodily harm. Like this appellant, the offender had a dysfunctional upbringing. An appeal against his sentence of 5 years' imprisonment was dismissed.

31 In our view, for two reasons, reference to Lawrence does not assist the appellant. First, the facts and circumstances of Lawrence are so different from the present case that making a direct comparison of the seriousness of the offences is difficult. The wide variety of circumstances in which an offence against s 304(2) may be committed may often present challenges for a contention that consideration of comparable cases reveals a lack of broad consistency.[17] Secondly, the dismissal by this court of an offender's appeal against sentence does not mean that the sentence imposed fixes the upper limit of the range of available sentences.

32 While the appellant did not intend to cause physical harm, his deliberate conduct in driving a car forcefully into the wall of a bedroom created a real risk of death or serious injury. It created considerable fear for the victims, one of whom has suffered significant psychological impact. As we have said, in assessing the seriousness of an offence under s 304(2), the risk to health and safety of people may, in some cases, be as important as the actual harm caused. The judge's finding that this offence was in the upper range of seriousness for a case of intent to cause pecuniary harm was not challenged. Further, the judge rightly recognised that the appellant's record of violent offending meant that personal deterrence and the need to protect the community from further violent offending by the appellant were both significant considerations in the sentencing exercise. The appellant did not have the benefit of youth as a mitigating factor, having been 28 years old when he committed the offence.

33 For these reasons, we are not persuaded that the sentence imposed on the appellant was manifestly excessive. Consequently, we would dismiss the appeal.

[8] Penny v The State of Western Australia [2016] WASCA 52 [32]; Kaokula v The State of Western Australia [2016] WASCA 198 [61].

[9] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [136]; Kaokula [63] and cases there cited.

[10] Appellant's submissions [23]; appeal ts 6 - 9, 11.

[12] As to which, see BLM [134] - [137].

[14] Penny v The State of Western Australia [2016] WASCA 52.

[15] Penny [33] - [40]; the appellant also referred to Penny itself, The State of Western Australia v Redman [2009] WASCA 1, and Eriha v The State of Western Australia [2011] WASCA 167.

[16] Lawrence v The State of Western Australia [2015] WASCA 187; appeal ts 12 - 13.