HORNELL -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 137 (30 July 2021)

1. The appellant was 31 years old at the time of the offending, and he was 34 years old when he was sentenced. He has a relatively short prior criminal history. In December 2008, he was convicted in the Geraldton Magistrates Court of two counts of common assault, for which he was fined and given a spent conviction order. Since then, he has not been convicted of any offences involving violence. In 2011, he was convicted in the Carnarvon Magistrates Court of stealing. In 2016, he was convicted in the Carnarvon Magistrates Court of possessing a prohibited drug and, in 2018, was convicted in the Joondalup Magistrates Court of possessing drug paraphernalia on which there was a prohibited drug.
2. The appellant was educated to year 11 level. He has lived in various parts of Western Australia, including Carnarvon and Broome. The appellant has what the sentencing judge described as 'a fairly good work record'.[7]
3. After the commission of the offence which is the subject of this appeal, the appellant formed a relationship with a woman, JR, during which their son was born. After the child's birth, the appellant reportedly ceased drinking and using drugs.[8] Character references tendered to the sentencing judge suggested that the appellant was the sole carer for his son, and had made positive changes in his life. According to defence counsel, JR was not in a position to care for the child. When asked by his Honour who was looking after the child, defence counsel said that the appellant's mother and brother were caring for the child.[9]

1. It is unnecessary to refer in detail to the sentencing submissions of the prosecutor and defence counsel. For the purposes of this appeal, it is sufficient to note defence counsel's submission that, while offences of the kind committed by the appellant 'almost inevitably' result in an immediate term of imprisonment, it was open to the sentencing judge to suspend any term of imprisonment he imposed, having regard to the manner in which the victim 'to some extent provoked the act which caused the grievous bodily harm', coupled with the time the appellant had spent in custody prior to being sentenced.[10] The reference to provocation concerns the victim's use of the methylamphetamine pipe to ward off the attack by Ms Devereux and Ms Hill.
2. The prosecutor submitted that it was inappropriate to suspend the term of imprisonment to be imposed upon the appellant. In effect, the prosecutor submitted that any mitigating factors went to the length of the term of imprisonment and not the type of sentence to be imposed.[11]

1. Troy DCJ sentenced both the appellant and Ms Hill. It is unnecessary to refer to the sentencing remarks insofar as they apply to Ms Hill. Ultimately, his Honour sentenced Ms Hill to 16 months' immediate imprisonment for the offence of unlawfully doing grievous bodily harm to the victim.[12] Ms Devereux was dealt with before the appellant and Ms Hill by another judge. She pleaded guilty to unlawfully doing grievous bodily harm to the victim. Ms Devereux, too, received a term of immediate imprisonment.[13] Troy DCJ was aware of, and had regard to, the sentence imposed on Ms Devereux. Parity has not been raised as an issue in this appeal. It is enough to say that there were differences between the cases of the appellant, Ms Hill and Ms Devereux, which justified the various sentences that were imposed.
2. His Honour was satisfied beyond reasonable doubt that Ms Devereux was the instigator of the violence and that she directed the appellant to knock out the victim.[14] He was also satisfied that the appellant punched the victim in response to that direction, as well as out of concern that the victim was attempting to stab Ms Devereux with the methylamphetamine pipe she held.[15] As to this concern, his Honour found that the victim's actions were a response to a 'two to one confrontation', and that the appellant's actions were, in the circumstances, 'grossly disproportionate'.[16]
3. His Honour found that the appellant punched the victim to the right side of the face with significant force.[17] His Honour referred to the witness statements of Ms Devereux and Ms Elliott‑Garwood in this respect. He noted that Ms Devereux said in her statement, 'I thought he'd killed her. He'd hit her that hard'.[18] Ms Elliott‑Garwood said that:[19]

[The appellant] hit her [the victim] so hard the sound of him hitting her was sickening. It was the loudest punch I have ever heard. I thought [the victim] would be dead, he hit her that hard.

1. His Honour rejected the submission put to him by defence counsel that what the appellant did was 'at the lower end of a relative scale'.[20] His Honour characterised the injury suffered by the victim as not being 'at or towards the lower end of the scale'.[21]
2. His Honour described the punch and the circumstances in which it was thrown, as follows:[22]

Here, it was a powerful punch thrown without warning to a vulnerable victim, albeit with some provocation. Not only did you throw a punch when the victim had no opportunity to defend herself from you, but when she was even more vulnerable because she was already outnumbered two to one.

1. His Honour noted that the appellant had not previously served a term of imprisonment, and that while he had a record for violence, it was 'relatively old and insignificant in comparison to your offending on this indictment'.[23]
2. His Honour said that the appellant's criminal record was such that he was not of previous good character, and that the sentence he was required to impose needed to incorporate 'a component of personal deterrence'.[24]
3. His Honour said that he was not satisfied that the appellant or Ms Hill were remorseful for what they had done.[25]
4. By way of mitigation, his Honour gave a discount from the head sentence he would otherwise have imposed of 10% pursuant to s 9AA of the Sentencing Act 1995 (WA), having regard to the lateness of the appellant's plea of guilty.[26] His Honour took into account the time the appellant had spent in custody in respect of matters that were not ultimately proceeded with.[27] His Honour also took into account the appellant's 'significant steps towards rehabilitation since committing this offence', which have been a consequence of the appellant's parental responsibilities to his young son.[28]
5. Relevantly to ground 2, his Honour said that he was not satisfied that there were exceptional circumstances which enabled him to take into account, as a mitigating circumstance, hardship to the appellant's young son as a consequence of a sentence of immediate imprisonment.[29] In doing so, his Honour referred, in general terms, to the relevant principles that were discussed in this court's decision in The State of Western Australia v Chapman.[30]
6. His Honour sentenced the appellant to 2 years 6 months' immediate imprisonment. In applying the totality principle, the sentencing judge had regard to the period of time the appellant had spent in custody for offences that were not proceeded with. He stated that, but for this factor, he would have sentenced the appellant to 2 years 9 months' immediate imprisonment.[31] His Honour backdated the sentence to commence on 21 December 2020 to take into account the time spent in custody on remand for the present offence. He also made the appellant eligible for parole.
7. His Honour did not expressly deal with defence counsel's submission that his Honour should suspend any term of imprisonment imposed upon the appellant.

1. The general principles relevant to this appeal were stated in Wilson v The State of Western Australia[32] as follows:
   1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[33] In most instances, a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
   2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence.[34]
   3. Even if error is demonstrated, the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing.[35]
   4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding.[36]
   5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success.[37]
2. It is convenient to deal first with ground 2 and then grounds 1 and 3.

1. In support of ground 2, the appellant incompletely cited an excerpt of Beech J's reasons in Chapman. The excerpt relied upon by the appellant is contained within [119] of those reasons. As quoted in the appellant's case, it reads:

[Hardship to children] may be taken into account when the degree of hardship that imprisonment will involve is exceptional, or where imprisonment will result in the children being deprived of parental care. (emphasis added)

1. The appellant submits that the sentencing judge failed to recognise the word 'or' in the passage quoted above and failed to apply the test appropriately, as the appellant's child was deprived of parental care upon his incarceration.
2. There is no merit in this proposed ground of appeal.
3. The full statement made by Beech J at [119] of Chapman reads:

The general principle is that, ordinarily, hardship caused to an offender's children by imprisonment of an offender will not be taken into account in the sentencing process. However, in exceptional cases it may be taken into account. It may be taken into account when the degree of hardship that imprisonment will involve is exceptional, or where imprisonment will result in the children being deprived of parental care. In all cases, whether, and to what extent, it may be taken into account depends on the gravity of the offence and the circumstances of the case: Stewart (1994) 72 A Crim R 17, 21; The State of Western Australia v Wynne [2008] WASCA 195 [80] ‑ [81].

1. The portion relied upon by the appellant omits Beech J's clear statement that, ordinarily, hardship caused to an offender's children by imprisonment of an offender will not be taken into account in the sentencing process. It also omits the last sentence of the paragraph.
2. It may be accepted that the appellant's incarceration will cause some hardship to his son. However, in the present case, there was no evidence that, upon the appellant's incarceration, his son would suffer exceptional hardship or that he would be deprived of parental care. The expression 'parental care' should be understood broadly to include relatives or persons who are able to undertake parental duties towards a child. The only 'material' put before his Honour on behalf of the appellant on the topic was defence counsel's unsupported statement from the bar table referred to above. There was no sufficient basis to enable his Honour to find that the appellant's son would not be properly cared for by the appellant's mother and brother while he was incarcerated, or that the child would suffer exceptional hardship as a result of the appellant's imprisonment.
3. Ground 2 has no reasonable prospect of succeeding.

1. In support of ground 1, the appellant pointed to defence counsel's submission to the sentencing judge that he should consider a suspended sentence. The appellant observed that his Honour did not specifically respond to this submission at the time it was made, nor did he refer to it at any other time in the sentencing process, including in his sentencing remarks. The appellant contends that his Honour was obliged to consider the imposition of a suspended term of imprisonment before imposing a term of immediate imprisonment, and that by failing to do so, his Honour fell into error. The appellant submits that this error enlivens this court's jurisdiction to resentence the appellant.

1. Recently, in Monisse v The State of Western Australia,[38] we summarised the relevant statutory provisions and legal principles applicable to the imposition of a suspended or conditionally suspended sentence. It is useful to repeat this summary:

By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) 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.

Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional 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.

Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.

The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.

The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.

A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).

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. See Fogg v The State of Western Australia. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86]. (citations omitted)

1. It is true that, in his sentencing remarks, his Honour did not refer to defence counsel's submission that the appellant should be sentenced to a suspended term of imprisonment. Ordinarily, where a submission is made that a term of suspended imprisonment should be imposed and that submission is rejected, reasons, which need not be elaborate, should be given.
2. In the present case, it appears that his Honour overlooked dealing with defence counsel's submission on this issue. However, having regard to the reasons as a whole, the clear inference is that, in his Honour's opinion, a term of immediate imprisonment was the only appropriate sentence.
3. Nevertheless, even if the error in ground 1 was made out, for the reasons given below in respect of ground 3, it is not reasonably arguable that a different sentence should have been imposed on the appellant. As Buss JA (McLure P agreeing) explained in Abraham v The State of Western Australia,[39] neither s 27 of the Criminal Appeals Act (WA) nor any other provision of the Act requires this court to grant leave to appeal on a ground of appeal in an appeal against sentence which, as in the case of ground 1, alleges an express error by the sentencing judge, if this court is satisfied the ground has a reasonable prospect of succeeding. This court retains a discretion to refuse a grant of leave if the court is satisfied that, even if the express error is made out, it is not reasonably arguable that a different sentence should have been imposed.
4. Leave to appeal on ground 1 should be refused.

1. As to ground 3, the appellant submitted that, having regard to the circumstances of the offence, including that it was unplanned, involved a single punch, and was not protracted offending, along with the mitigating factors, including the appellant's personal circumstances, most significantly his parental responsibilities, it was not open to his Honour to conclude that a term of suspended imprisonment was inappropriate. In any event, the appellant submitted that the length of the term of imprisonment was too long.
2. Where manifest excess is alleged, the orthodox approach is to have regard to the maximum penalty for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
3. Consistently with the principles referred to at [40] above, the question in this appeal is whether it was reasonably open to his Honour to be positively satisfied that a suspended term of imprisonment was inappropriate.
4. The relevant maximum penalty for unlawfully doing grievous bodily harm is 10 years' imprisonment.
5. The appellant is a large man, who is more than twice the weight of the victim. While it is true that he did not use a weapon on the victim or hit her multiple times, his punch was, as his Honour found, powerful. The appellant punched the victim without warning while she was on the floor, at Ms Devereux's behest, who asked him to 'knock [the victim] out'. The victim had no opportunity to defend herself. She was plainly vulnerable. Her vulnerability was compounded by the fact that she was outnumbered. While his Honour found that there was 'some provocation', this factor cannot significantly diminish the appellant's criminality when one considers that his conduct was 'grossly disproportionate' to the victim's actions.
6. The injury sustained to the victim required hospitalisation and surgery. It has had significant ongoing effects upon the victim. A powerful blow to the head, of the kind inflicted by the appellant, had the potential to cause greater injury than that actually suffered by the victim.
7. There is no tariff for the offence of unlawfully doing grievous bodily harm, having regard to the great variation in the circumstances in which the offence is committed. The dominant sentencing considerations where unlawful grievous bodily harm is done are personal and general deterrence. The appellant, in his written submissions, referred to a number of sentencing cases decided by this court to support his contention that the sentence imposed upon him was manifestly excessive, including The State of Western Australia v Saleh,[40] Lee v The State of Western Australia,[41] The State of Western Australia v Mackey,[42] Bowe v The State of Western Australia,[43] Kere Kere v The State of Western Australia,[44] Winmar v The State of Western Australia,[45] The State of Western Australia v Ghilardi,[46] Gurgone v The State of Western Australia[47] and Hobby v The State of Western Australia.[48] We have considered these cases and the cases cited therein. While there have been some cases where unlawfully doing grievous bodily harm has attracted suspended terms of imprisonment, they invariably have involved unusual circumstances. We do not consider the outcome in the present case to be inconsistent, either as to type or length, with these cases.
8. The appellant's personal circumstances were not especially favourable. The appellant was not a youthful offender, and he is not a person of good character, although it is clear he has family support and some support in the community. Provided he does not lapse into alcohol abuse and illicit drug use, he has good prospects of rehabilitation.
9. The offence committed by the appellant, while not the most serious of its type, had the serious features which were referred to at [49] and [50] above. We do not regard the facts of the present case as having the kind of unusual circumstances that would justify a suspended term of imprisonment. General and personal deterrence were important sentencing considerations. In our opinion, when all of the relevant circumstances are considered, the imposition of a term of immediate imprisonment was necessary, notwithstanding the mitigating factors. In other words, it was reasonably open to his Honour to be positively satisfied that a suspended or conditionally suspended term of imprisonment was inappropriate. We do not regard the length of the term that was imposed as unreasonable or plainly unjust. The sentence imposed by his Honour was not manifestly excessive, either as to type or length.
10. Ground 3 has no reasonable prospect of succeeding.

1. The orders we would make are as follows:
   1. An extension of time to appeal is granted.
   2. Leave to appeal is refused on all grounds.
   3. The appeal is dismissed.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[30] The State of Western Australia v Chapman [2012] WASCA 203.

[32] Wilson v The State of Western Australia [2010] WASCA 82 [2].

[33] House v The King (1936) 55 CLR 499, 505.

[35] Criminal Appeals Act 2004 (WA), s 31(4)(a).

[36] Criminal Appeals Act, s 27(1) and s 27(2).

[37] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

[38] Monisse v The State of Western Australia [2021] WASCA 52 [35] ‑ [42].

[39] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [81].

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

[41] Lee v The State of Western Australia [2018] WASCA 156.

[42] The State of Western Australia v Mackey [2017] WASCA 204.

[43] Bowe v The State of Western Australia [2017] WASCA 166.

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

[45] Winmar v The State of Western Australia [2016] WASCA 62.

[46] The State of Western Australia v Ghilardi [2015] WASCA 61.

[47] Gurgone v The State of Western Australia [2016] WASCA 9.

[48] Hobby v The State of Western Australia [2011] WASCA 197.