FERNIE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 20 (18 February 2022)

4 Count 2 alleged that the appellant unlawfully wounded CMK, contrary to s 301(1) of the Code. This offence carries a maximum penalty of 5 years' imprisonment.

5 Count 3 alleged that the appellant unlawfully did grievous bodily harm to CDK and that the offence was committed in the course of conduct that constituted an aggravated home burglary. This offence is contrary to s 297(1) of the Code and carries a maximum penalty of 10 years' imprisonment. As the offence was said to have been committed in the course of an aggravated home burglary, the appellant, if convicted, was liable to a mandatory minimum penalty of 7 years 6 months' imprisonment, pursuant to s 297(5) of the Code.

6 Her Honour sentenced the appellant to terms of imprisonment of 4 years on count 1, 2 years on count 2 and 8 years 2 months on count 3.

7 To reflect the operation of the totality principle, her Honour ordered that the sentences on counts 1 and 2 be served concurrently with each other and concurrently with the sentence on count 3. Accordingly, the total effective sentence imposed upon the appellant was 8 years 2 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 22 September 2020.

8 The appellant, who is self‑represented, seeks leave to appeal on a single ground. In substance, the appellant alleges that each of the individual sentences was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.

9 Consistently with the jury's verdicts, her Honour made the following findings of fact, which the appellant does not challenge in this court.

10 In the early hours of 27 February 2019, the appellant, in company with at least two other men, attended a residential address in Maddington. The address was occupied by a number of people including CMK and his son, CDK. The appellant and his co‑offenders were disguised. One of them was armed with a knife which was described as a machete in the trial. Another was armed with a crowbar.

11 The appellant and the co‑offenders forcibly entered the house by kicking in the front door and prising the screen door and the wooden door open with the crowbar.

12 Upon entering the house, the appellant and the other men made threats of violence towards CMK and CDK. CMK's young daughter was sleeping in a nearby bedroom.

13 The appellant participated in an assault upon CMK (count 1). The assault was witnessed by CDK who, in order to defend his father, stabbed the appellant in the upper left arm. The appellant was hospitalised as a result.

14 In the course of the aggravated home burglary both CMK and CDK were struck with the machete. Relevantly to count 2, CMK sustained a 4 cm laceration to his left forearm while he was defending himself from the ongoing assault by the co‑offenders. As to count 3, CDK was struck on his fingers by the machete as he put up his hands in a defensive position. As a result, CDK sustained serious injuries, in particular to his right index finger. Medical evidence adduced at the trial from Dr Jessica Kierath revealed that, without treatment, the injury would have led to a swan‑neck deformity developing in the right hand, which significantly reduces the function of that hand. Without treatment, the injury would likely have caused permanent injury to CDK's health. The injury was surgically repaired. However, Dr Kierath expected that CDK might not regain full function of his right index finger.

15 Her Honour found that the appellant was criminally responsible for counts 2 and 3 on the basis of s 7(c) of the Code in that he knowingly aided another person to commit the offences. Alternatively, pursuant to s 8 of the Code, that the offences were a probable consequence of the common intention formed by him and the co‑offenders to prosecute an unlawful purpose of aggravated burglary.

16 The appellant's defence at trial was that he was not present at the house at the relevant time and could not have committed the alleged offences. Her Honour rejected this contention, noting that it was inconsistent with the jury's verdicts.

17 At the time of the commission of the offences, the appellant was 23 years of age. He was 25 when he was sentenced.

18 The appellant experienced a highly dysfunctional upbringing. He left home at the age of 14 years and was homeless for a number of years. He left school at year 9. Since then he has done some labouring work.

19 The appellant used cannabis in his youth and first used methylamphetamine when he was 19 years old.

20 The appellant has a substantial criminal history. He has prior convictions for drug offences, traffic offences, stealing, stealing a motor vehicle, burglary and fraud. On 26 March 2019, he was charged and convicted of a number of offences, most of which were committed after the offences the subject of the indictment. He was sentenced to 7 months' imprisonment for these offences. On 15 August 2019, he was sentenced to a further 6 months' imprisonment in the District Court for breaching a conditionally suspended imprisonment order made by that court on 30 November 2018. He was subject to this order at the time he committed the offences on 27 February 2019. He was also subject to a community based order for a burglary offence made by the Armadale Magistrates Court on 4 December 2018.

21 At the time he was sentenced, the appellant was in a relationship and expressed the intention that, after his release from gaol, he would start a new life in Kalbarri.

22 In her sentencing remarks, her Honour identified the following aggravating factors of the offending:

(1) The appellant was in company with other disguised offenders who were also armed.

(2) The offences were committed at a family residence late at night.

(3) The victim of count 3 sustained serious injuries as a result of being struck with 'a sharp instrument'.

(4) At the time of the offences, the appellant was subject to a community based order and a conditional suspended imprisonment order.

23 Her Honour said that there was nothing in the circumstances surrounding the commission of the offences that mitigated the seriousness of the appellant's conduct. However, as to the appellant's personal circumstances, her Honour found mitigation in his dysfunctional background and took into account what were described as the 'Bugmy[1] factors'. Her Honour stated that these factors were, in substance, to be balanced against the need for the sentences to provide public protection. Her Honour took into account, as a mitigating factor, the appellant's relative youth at the time of the commission of the offences. She also noted that he had been stabbed during the commission of the aggravated burglary.

24 Her Honour noted that the appellant, who contested his guilt throughout, could not avail himself of the mitigation that may have been afforded by reason of pleas of guilty or demonstrations of remorse or acceptance of responsibility for the offending.

25 It is clear from the sentencing remarks that her Honour placed considerable weight on the sentencing objectives of general and personal deterrence, public protection, as well as public denunciation. She was aware that count 3 carried a mandatory minimum sentence of 7 years 6 months' imprisonment and of the principles which apply to the application of that sentence (see [30] ‑ [31] below). Her Honour was also aware that the appellant was to be sentenced immediately after serving a term of 13 months' imprisonment.

26 Her Honour referred to the totality principle. She applied it by ordering that the sentences she imposed on counts 1 and 2 be served concurrently with each other and concurrently with the sentence she imposed on count 3.

27 The legal principles applicable to the ground of appeal are well established. They were recently restated by this court in Kabambi v The State of Western Australia:[2]

The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:[3]

(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 involves acting on a wrong principle, for example by 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) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. 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.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

28 In substance, the appellant submitted that the individual sentences for each offence and the total effective sentence were unreasonable and plainly unjust. The submissions were made having regard to the appellant's relative youth, his deprived background and the outcome in what he said were comparable cases being Knight v The State of Western Australia;[4] Kere Kere v The State of Western Australia;[5] Hansen v The State of Western Australia;[6] The State of Western Australia v Cronin;[7] and The State of Western Australia v Saleh,[8] and bearing in mind that the appellant was subject to a mandatory minimum sentence of 7 years 6 months' imprisonment for the offence in count 3.

29 Having regard to the fact that the sentences on counts 1 and 2 were ordered to be served concurrently, the focus of the ground of appeal must be on the sentence that was imposed on count 3. The appeal cannot succeed unless the appellant persuades the court that this sentence is manifestly excessive.

30 As mentioned, because the offence of grievous bodily harm was committed in the course of the aggravated home burglary the subject of count 1, the appellant was subject to the mandatory minimum sentence of 7 years 6 months' imprisonment for count 3. In The State of Western Australia v Clark,[9] this court explained that the effect of the minimum penalty and the maximum penalty is that these factors operate as a floor and ceiling within which the sentencing discretion must be exercised.[10] The court went on to explain that the statutory minimum penalty is to be imposed for the least serious category of case, while the maximum penalty is to be imposed for an offence that comes within the worst category of case.[11]

31 When sentencing an offender who is the subject of a statutory minimum penalty, a sentencing judge must determine where the offending falls in the range between the least serious category of case, for which the minimum penalty is appropriate, and the worst category of case, for which the maximum penalty is appropriate. In doing so, all relevant sentencing factors, including the nature of the offence committed and the circumstances of the offender must be considered.

32 In the case of a person who commits the offence of grievous bodily harm in the course of an aggravated home burglary, the difference between the least serious category of case and the worst category of case is only 2 years 6 months' imprisonment. This is a consequence of Parliament's determination to impose a mandatory minimum penalty of 7 years 6 months' imprisonment on an offence that carries a maximum penalty of 10 years' imprisonment.

33 Count 3 could not reasonably be described as being in the least serious category of case, having regard to the circumstances in which it was committed; the aggravating circumstances identified by her Honour, including the nature of the injuries sustained by CDK; the absence of the mitigation that would have been afforded by a plea of guilty and the need, in the particular case, to impose a sentence that properly reflected the sentencing objectives of general and personal deterrence, public protection, as well as public denunciation. The comparable sentences referred to by the appellant are unhelpful. None of them deal with offences the subject of a mandatory minimum penalty.

34 Having regard to all of the relevant circumstances, it is not reasonably arguable that the sentence imposed on count 3 was manifestly excessive. This conclusion is enough to dispose of the ground of appeal. However, we would add that the appellant's claim that the individual sentences on counts 1 and 2 were manifestly excessive has no merit. Taken separately, each of those offences was a serious example of its type and the sentences that were imposed were well within the discretionary range properly available to her Honour.

35 The ground of appeal has no reasonable prospect of succeeding. Leave to appeal must be refused.

36 As the proposed ground of appeal has no reasonable prospect of succeeding, granting an extension of time to appeal would be futile.

(1) The application for an extension of time is refused.

(2) Leave to appeal 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.

[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[2] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[3] The following statement of the general principles is taken from the judgments of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48] and in Trajkoski v The State of Western Australia [2018] WASCA 176 [30].

[4] Knight v The State of Western Australia [2014] WASCA 217.

[5] Kere Kere v The State of Western Australia [2016] WASCA 189.

[6] Hansen v The State of Western Australia [2019] WASCA 170.

[7] The State of Western Australia v Cronin [2020] WASCA 203.

[8] The State of Western Australia v Saleh [2020] WASCA 205.

[9] The State of Western Australia v Clark [2020] WASCA 103.

[10] The State of Western Australia v Clark [61].

[11] The State of Western Australia v Clark [62] ‑ [64].