Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Act or omission causing bodily harm or danger - Appeal against sentence - Manifest excess

Criminal Appeals Act 2004 (WA), s 41

Hinkley v The State of Western Australia [2014] WASCA 122

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

3 MAZZA JA: This is an appeal against sentence.

4 The appellant was charged on indictment with three offences, all of which were said to have occurred on 7 November 2013 at Perth. Count 1 alleged that the appellant, with intent to harm, did an act as a result of which the life, health or safety of Robert Antonio Gatani was, or was likely to be, endangered contrary to s 304(2)(b) of the Criminal Code (WA). Count 2 alleged that the appellant unlawfully assaulted Julian Corey Armstrong and thereby did him bodily harm contrary to s 317(1)(b) of the Criminal Code. Count 3 alleged that the appellant stole Mr Armstrong's mobile telephone contrary to s 378 of the Criminal Code.

5 The appellant was tried before Stevenson DCJ and a jury. On 26 November 2014, he was convicted as charged. On 27 November 2014, the appellant was sentenced as follows:

(Reduced from 2 years 6 months' imprisonment for reasons of totality (ts 271).)

6 years' imprisonment, backdated to 7 November 2013; parole eligibility

6 The sole ground of appeal relied upon by the appellant alleges that the sentence of 5 years' imprisonment imposed upon count 1 was manifestly excessive. Leave to appeal has been granted with respect to this ground.

7 For reasons which will become clear, it is necessary to recount the facts of the appellant's entire offending.

8 At about 9.00 am on 7 November 2013, the appellant and his brothers, Matthew Winmar and Steven Winmar, were drinking with another man in South Perth. In the early afternoon, they travelled as a group into Perth city. Somehow, the appellant and Matthew Winmar became separated from the others. While in the city, the appellant and Matthew Winmar consumed more alcohol to the point where each of them was highly intoxicated.

9 At about 6.30 pm on 7 November 2013, the appellant and Matthew Winmar went to a food van in the carpark near the Red Cross building on Wellington Street to obtain a meal. Next to the food van was a 'street doctor' van. The appellant and Matthew Winmar were in an aggressive mood. Mr Gatani and others were also present at the food van. The appellant and Matthew Winmar approached Mr Gatani's group. A 'stare-down' between Mr Gatani and Matthew Winmar ensued, which escalated to the point that Matthew Winmar took up a boxing stance. While this was happening, the appellant told Mr Gatani that 'this will be your last meal' (ts 237). Mr Gatani attempted to calm down the situation and indicated to Matthew Winmar that he had no problem with him. However, a fist fight broke out between them, each landing blows on the other. Bystanders became involved. Some called out to stop the fight. At least one person put himself in the way of Matthew Winmar and tried to stop him punching Mr Gatani. Matthew Winmar punched this person in the face.

10 The appellant became physically involved in the fracas. He punched Mr Gatani in the back of the head from behind, forcing Mr Gatani into the street doctor's van, as a result of which he sustained a cut to the chin. Mr Gatani fell to the ground. While on the ground, he lapsed in and out of consciousness. He was clearly unable to defend himself. Despite this, the appellant and Matthew Winmar together kicked and stomped on Mr Gatani. These blows were delivered to Mr Gatani's upper body and head. At this point, he appeared lifeless. Between them, the appellant and Matthew Winmar delivered approximately 10 kicks and stomps to Mr Gatani. One of the witnesses to the incident, Michelle Dunlop, thought that Mr Gatani may have been killed.

11 Mr Gatani was treated by a doctor at the scene before being conveyed to the nearby Royal Perth Hospital. 11 stitches were inserted into his chin. He sustained a concussion, scalp haematomas and a black eye. He also suffered severe facial swelling, as well as bruising to and soreness in his upper body and neck area. The injuries caused residual effects which were still present at the time of the appellant's sentencing.

12 After the assault upon Mr Gatani, the appellant and Matthew Winmar walked towards McIver train station. Along the way, they came across Mr Armstrong, a visitor from Queensland, who was walking from his accommodation towards Northbridge to buy a meal. Sensing that he was in some danger, Mr Armstrong walked to the other side of the road in an attempt to avoid the appellant and Matthew Winmar. One of them called out to Mr Armstrong 'You can't escape' (ts 239). Mr Armstrong continued to walk away, but the appellant and Matthew Winmar broke into a run and corralled him. The appellant then punched Mr Armstrong's left eye with substantial force, knocking him to the ground.

13 While on the ground, Mr Armstrong was punched and kicked by the appellant and Matthew Winmar. His white Samsung Galaxy mobile telephone fell out of his pocket, and he dropped the book he was reading. Eventually, Mr Armstrong got to his feet and ran away, leaving his mobile telephone and book on the ground. The appellant picked up the mobile telephone and handed it to Matthew Winmar. The appellant and Matthew Winmar then continued walking towards McIver train station. Eventually, they caught a train and left the area. A short time later, they were apprehended by railway police. Mr Armstrong's mobile telephone was found in the appellant's pocket. When interviewed, the appellant denied assaulting either Mr Gatani or Mr Armstrong, and blamed his brother.

14 In the meantime, Mr Armstrong presented at Sir Charles Gairdner Hospital with a black left eye, facial bruising and swelling, as well as grazing and abrasions to his knees and hands and extensive bruising to his inner left thigh.

15 Matthew Winmar pleaded guilty and was dealt with separately to the appellant. As no issue of parity has been raised, it is unnecessary to refer to Matthew Winmar's sentencing.

16 At the time of the offences, the appellant weighed approximately 140 kg. Matthew Winmar weighed approximately 110 kg. Mr Gatani was described at trial as being approximately 5 feet 6 inches tall and slightly built.

17 The appellant was 34 years of age when he was sentenced. He was born in Bunbury and raised in Perth. He had a difficult and dysfunctional upbringing. The appellant's father was murdered by a family member in 2000. Since leaving school in year nine, he has had little paid employment.

18 The appellant has been in two significant relationships and has four children, the eldest of whom is 15 years of age. It appears that the appellant is very attached to his children.

19 As an adult, the appellant has a lengthy criminal history. Of particular concern is his numerous convictions for violent offences, being as follows:

Act or omission with intent to harm did cause bodily harm

20 In addition, the appellant has been convicted on numerous occasions of stealing and other dishonesty offences, as well as disorderly conduct, traffic offences, trespass, unlawful damage, possession of an offensive weapon, and breaches of bail and violence restraining orders. His criminal history demonstrates an attitude of defiance to the law and a proclivity for violence.

21 In mid-May 2013, the appellant was released from prison, having served the whole of the sentence imposed upon him on 20 January 2011.[1] The present offences were committed some six months after his release.

22 Defence counsel presented to his Honour a letter from Communicare dated 25 February 2014.[2] At that time, the appellant was in custody on remand. The letter sets out that the appellant had been accepted into a 12-week residential behaviour change program designed for men who have been abusive within the family environment; and that the appellant's entry into the program was contingent upon, among other things, his release from prison. The appellant was not granted bail before his trial. Accordingly, the appellant did not undertake the program.

23 Defence counsel said, in the course of his plea in mitigation, that the appellant had been made an elder of his indigenous community and wished, upon his release from prison, to start a business.

24 The learned sentencing judge characterised the offending as 'at the high end involving gratuitous violence in company against innocent members of the community' (ts 262). In this regard, his Honour noted:

(a) Both victims were attacked at random, without provocation and attempted to avoid any violence (ts 262).

(b) There was no motive or discernible reason for the assaults (ts 263).

(c) Both victims were the subject of a joint 'two on one' attack that was, in each instance, 'cowardly' (ts 263).

(d) In the case of Mr Gatani, the appellant struck him from behind (ts 263).

(f) Each assault occurred in a public place (ts 263).

(g) The violence meted out to the victims was sustained, vicious and gratuitous (ts 264).

(h) Mr Gatani was kicked and stomped on in a forceful manner without regard for his safety (ts 264).

(i) Neither the appellant nor Matthew Winmar made any attempt to render assistance to the victims. To the contrary, 'There was absolutely no concern and no mercy shown' to the victims, nor any concern about their physical welfare or the injuries that they might have caused them (ts 264).

(j) The injuries sustained by Mr Gatani could have been far more serious than they were and could have 'possibly resulted in his death' (ts 265).

25 With respect to each of the victims, his Honour found:

(a) There was a real, as opposed to fanciful, potential that harm might have been caused to both victims by reason of the force used by the appellant and Matthew Winmar.

(b) The appellant intended to cause bodily harm to Mr Gatani (ts 264).

(c) Mr Armstrong would have been psychologically impacted and lost a sense of safety as a result of his attack (ts 266).

26 The learned sentencing judge found that the appellant was not remorseful and had neither insight into the seriousness of his actions, nor concern for the victims (ts 265).

27 His Honour referred to the appellant's difficult upbringing and his plans to start a business upon his release (ts 266).

28 The learned sentencing judge had regard to the appellant's criminal record and concluded that the appellant's history of random and violent offences represented a danger to the community. His Honour also found that general and personal deterrence were of importance (ts 266 - 267).

29 As I have observed, the learned sentencing judge reduced the sentence he would have imposed upon count 2 from 2 years 6 months' imprisonment to 1 year's imprisonment for reasons of totality. His Honour ordered that the sentences imposed upon counts 1 and 2 be served cumulatively (ts 271).

30 Although the ground of appeal alleges implied error, the particulars to the ground appear to allege express error. It is said that his Honour failed to take into account two relevant sentencing considerations, namely 'the low level of seriousness of the complainant's injuries' and 'the appellant's positive steps towards his rehabilitation in addressing his issues with violence'.

31 It was submitted that the sentence imposed upon count 1 was manifestly excessive having regard to the 'relatively minor' injuries sustained by the complainant; that the offending was not premeditated; and the outcomes in The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116; The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 and Hinkley v The State of Western Australia [2014] WASCA 122.

32 This court cannot intervene simply because, had it sentenced the appellant at first instance, it would have imposed a different sentence. Before this court can intervene, the appellant must demonstrate a material express or implied error. An allegation that an individual sentence is manifestly excessive is one of implied error; thus, the appellant must demonstrate that the sentence was so plainly unjust or unreasonable that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

33 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence; the standards of sentencing customarily observed; the place which the criminal conduct occupies on the scale of seriousness; and the personal circumstances of the offender.

34 There is no merit in the appellant's allegations that his Honour failed to take into account relevant matters. The learned sentencing judge expressly took into account the injuries inflicted upon Mr Gatani and did not misapprehend their seriousness. While the injuries were not life-threatening, they were not minor - they involved a combination of injuries that required hospitalisation and left Mr Gatani with some residual symptoms. The evidence did not require a finding that the appellant had taken positive steps towards rehabilitation. To the contrary, his antecedents, offending behaviour, lack of insight and absence of remorse belie genuine rehabilitation.

35 The maximum penalty for an offence contrary to s 304(2)(b) of the Criminal Code is 20 years' imprisonment.

36 Given the wide variety of circumstances in which the offences are committed, and of the offenders who commit them, there is no tariff for s 304(2) offences. This is illustrated by the outcomes in Wallam, BLM and Hinkley. Sentences imposed in other cases provide a yardstick or reference point for ensuring broad consistency in sentencing; however, they do not mark the boundaries of a court's sentencing discretion in any individual case. Rather, it is the unifying principles applied in comparable cases to which appellate courts attach importance.

37 In Hinkley, the court noted at [18] that the following factors are relevant to sentencing for an offence under s 304(2) of the Criminal Code:

(a) The nature and seriousness of the offender's intent to harm.

(b) The nature and seriousness of the 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.

(c) The potential (as distinct from the actual) consequences of the offender's conduct.

38 The appellant intended to, and then did, inflict bodily harm upon Mr Gatani. The injuries sustained by Mr Gatani cannot be dismissed as minor. They endangered his health and safety, and there was a potential for far greater harm, including death. As the learned sentencing judge found, the fact that Mr Gatani's injuries were not more serious was fortuitous.

39 With respect to the submission that the assault was not premeditated, while the appellant may not have intended to assault someone when he first went to the carpark, he was in an angry mood when he arrived there and, without hesitation, he willingly joined in the attack on Mr Gatani.

40 I need not repeat what his Honour said about the circumstances of the offence concerning Mr Gatani, none of which the appellant challenges. To punch Mr Gatani from behind, render him in and out of consciousness and then kick and stomp on him while he lay defenceless on the ground is conduct which evinces a high degree of criminality.

41 There was very little by way of mitigation. Specifically:

(a) The appellant did not have the benefit of a plea of guilty.

(b) He was not remorseful in any way for, and had no insight into, what he had done and the harm he had inflicted upon the victims.

(d) His criminal history is disturbing. His Honour's conclusion that the appellant poses a danger to the community is unchallenged and was entirely justified.

42 The predominant sentencing considerations in this case were general and personal deterrence and the protection of the public.

43 The sentence imposed upon the appellant for count 1 was substantial, but I have not been persuaded that it was, having regard to all of the relevant facts and circumstances, plainly unjust or unreasonable. Neither express nor implied error has been established. This court has no power to intervene. The ground has not been made out. The appeal must be dismissed.

44 Even if the ground of appeal had been made out, it does not follow that the total effective sentence imposed upon the appellant would have been reduced.

45 Section 41(2) and s 41(3) of the Criminal Appeals Act 2004 (WA) provide:

(2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

(3) If under this Act an appeal court decides to vary a sentence, it may do one or more of the following -

(a) vary the sentence as imposed;

(b) impose a different sentence involving a different sentencing option;

(c) order that the sentence is to be taken to have taken effect on a date before the date of the order;

(d) order that the sentence is to take effect on a date on or after the date of the order.

46 The sentence imposed upon count 2 took into account the sentence imposed upon count 1.

47 In my opinion, the total effective sentence imposed by his Honour of 6 years' imprisonment was a proper reflection of the appellant's offending against both Mr Gatani and Mr Armstrong in its entirety and having regard to all the circumstances of the case, including those referable to the appellant personally.

[1] This sentence was backdated to commence on 20 August 2010.

[2] Erroneously referred to in the sentencing transcript as being dated 13 February 2014 (ts 245).