Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Unlawful detention, assault occasioning bodily harm and breach of restraining order - Victim was applicant's girlfriend - Whether proper allowance made for pleas of guilty - Whether error in accumulation of sentences - Whether totality principle properly applied - Whether aggregate term of 4 years and 10 months imprisonment manifestly excessive

Grimwood v The Queen [2002] WASCA 135

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Faithfull [2004] WASCA 39

R v White [2002] WASCA 112

Australian Coal & Shale Employees Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Gallegos v The Queen [1999] WASCA 191

Dickens v The Queen [2004] WASCA 179

Holland v The Queen [1999] WASCA 43

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

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mill v The Queen (1988) 166 CLR 59

Pieri v The Queen [2001] WASCA 357

R v Ruane (1979) 1 A Crim R 284

Sinagra-Brisca v The Queen [2004] WASCA 68

1 MURRAY ACJ: On 15 December 2003 the applicant pleaded guilty in this Court to an indictment charging him with an offence of unlawful detention and two counts of assault occasioning bodily harm. These could be regarded as early pleas made at the first opportunity. The indictment to which the applicant pleaded was dated 15 December 2003. It was presented to replace an earlier indictment charging the applicant with unlawful detention and attempted murder; hence his appearance in this Court. At the same time he was convicted under the Sentencing Act 1995 (WA), s 32 upon a complaint that he breached a violence restraining order by communicating with the person who was the subject of that order.

2 All the offences were related. The victim in each case was the same person, the applicant's de facto partner, with whom he had been in a relationship for about three years. The offences the subject of the indictment were committed on 30 November 2002. The applicant was arrested, interviewed and charged on the following day. He was in custody thereafter. It is convenient to note at this stage that he was convicted of a series of other offences in the Perth Court of Petty Sessions on 19 February 2003. The offences and the circumstances of their commission are irrelevant for present purposes, except that, as I understand it, they were charges laid when the applicant was originally taken into custody. Sentences aggregating 8 months imprisonment were imposed upon him and those sentences were backdated to 30 November 2002. It was, therefore, the case that from the outset the applicant was properly to be regarded as being in custody serving those sentences until they expired.

3 In the meantime, on 3 December 2002, the applicant's de facto partner applied for and obtained an interim violence restraining order. It prohibited any communication or attempt to communicate by the applicant. It was served on him in prison on 5 December 2002. On 20 December 2002, the applicant telephoned the complainant from the prison asking her to withdraw the restraining order. She terminated the call. When interviewed by the police subsequently, the applicant admitted making the call but said that he had no knowledge of the restraining order.

4 As to the offences committed on 30 November 2002, the trial Judge found that they were apparently related to the applicant's obsession with the idea that his partner was having sexual relations with other men, an accusation that he made from time to time during the period of their often volatile relationship. On the day in question the applicant had exhibited some threatening behaviour, but had stopped short of committing any assault upon his de facto. In the evening, however, the applicant, without warning or provocation, struck the complainant across her back with a pole of some kind, causing three abrasions. This incident constituted the first count of assault occasioning bodily harm.

5 The applicant then ran into the kitchen, opened the cutlery drawer and appeared to be going to obtain a knife. One was later found by police by the front door of the unit in which the two people were. She tried to escape, screaming, out of the front door, but the applicant prevented this and thereby committed the offence of unlawful detention.

6 The second offence of assault occasioning bodily harm was potentially very serious. The applicant took hold of the complainant with two hands around her throat, throttling her and using sufficient force to lift her off the ground. She fought, but the applicant continued to choke her. The front door was open and she tried to attract attention. The applicant kept hold of her with one hand while he closed the door with the other, again an aspect of the unlawful detention.

7 She passed out and when she came to, she discovered that the applicant had hold of her legs. Again she was choked and the applicant forcibly removed the complainant's shorts and underwear. Again she lost consciousness. When she regained consciousness, the applicant was in another part of the unit and the complainant seized the opportunity to run from the flat screaming for help. She attracted the attention of other residents who provided assistance.

8 Ultimately she was taken to Sir Charles Gairdner Hospital. She exhibited bruising, abrasions, a blood nose and features clearly evidencing the consequence of severe compression of the neck, the second offence of assault occasioning bodily harm. As the trial Judge observed, the applicant was lucky, given the severity of the attack, that he did not kill the complainant. It was noteworthy in that regard that after the first throttling attack on her the applicant did not seek help for his victim, although he had caused her to lose consciousness. Rather, when she came to, he resumed his attack.

9 Fortunately there was no lasting physical harm done, but the complainant's victim impact statement read to the Court provided a graphic illustration of the harm done to her personality. It seems clear that she suffered psychological ill-effects which had a considerable impact upon her life and continued to do so over a year after the offences were committed.

10 The trial Judge made relevant findings about the applicant's personal circumstances. He was aged 21 when he was before the Court. He had been raised by his mother, his parents having separated when he was a baby. His mother formed a new relationship and his stepfather physically abused him. He left home at the age of 14 and commenced to live on the streets of Kings Cross in Sydney. The Judge found that this experience was marked by the applicant's "descent into the use of illicit drugs, heroin addiction, stealing to survive and generally living by [his] wits". When he came before the Court, he was in the process of rebuilding his relationship with his natural father and he continued to receive support from his mother.

11 At the time when these offences were committed, the applicant continued his drug use, as did his partner, and it seems clear that the applicant's habit had assumed grave proportions, including the use of heroin and amphetamines, as well as cannabis. Psychiatric reports before the Court suggested that the applicant was demonstrating drug-induced psychosis and a tendency to violent behaviour. However, by the time the applicant appeared in Court, over a year after the events in question, the pre-sentence report indicated that he had been free of drugs for the past 11 months and was excited at the prospect of a life free of drugs. The trial Judge accepted that the applicant was genuinely remorseful for the offences committed. His Honour thought that there were indications that the applicant might ultimately achieve his full rehabilitation so that there might not be any further additions to what the trial Judge described as being, in the circumstances, a surprisingly short criminal history.

12 On 6 February 2004, the trial Judge imposed the following sentences:

(1) Unlawful detention - punishable by a maximum of 10 years imprisonment. The trial Judge said he would have imposed a sentence of 3 years imprisonment. He reduced that term to one of 2 years, having regard to the changes to the law made by amendments to the Sentencing Act 1995 (WA) effective from 31 August 2003. The transitional provisions required a reduction of one third of the sentence which would formerly have been imposed by the Court.

(2) The first assault occasioning bodily harm - punishable by a maximum of 5 years imprisonment. The applicant was sentenced to 2 years imprisonment, reduced by a third to 1 year and 4 months. The sentence was ordered to be served concurrently.

(3) The second, and far more serious, assault occasioning bodily harm - the sentence imposed was 4 years imprisonment, reduced to 2 years and 8 months. This sentence was ordered to be served cumulatively.

(4) Breach of the restraining order - punishable by a fine of $6000 or imprisonment for 18 months. The sentence imposed was 3 months imprisonment, reduced to 2, but to be served cumulatively.

13 That resulted in the aggregate of 4 years and 10 months imprisonment, with parole eligibility, the sentences being backdated to 31 March 2003 with the result that the applicant will become eligible for parole on 1 February 2006 after serving 2 years and 10 months.

14 As to the application for leave to appeal against the sentences imposed, before addressing the particular grounds of appeal it is appropriate to observe that, in my opinion, it is apparent from the remarks made by the sentencing Judge that his Honour approached the imposition of sentence by having regard to the appropriate principles. After discussing the mitigation derived from the pleas of guilty and the remorse and regret expressed by the applicant, which the sentencing Judge accepted was genuine, his Honour said:

"Be that as it may, these are extremely serious offences, especially the second one - that is to say, the second assault occasioning bodily harm - and by that I refer to the choking and strangling offence. It is important that I recognise the need to impose a sentence which will for that and the other offences reflect appropriate punishment for what you did.

The sentences must also have regard to the denunciatory, retributive and preventive consideration s or principles going to punishment. So far as deterrence is concerned, I do not consider that figures so greatly where you were acting under the influence of drugs except as a deterrent to people taking drugs where that is likely to result in violence to other people or other criminal offending and in that respect deterrence does, I think, have an important effect.

I must also have regard, and I do have considerable regard, to your prospects of rehabilitation, particularly in light of the material and submissions put before me on your behalf by Mr Birmingham. As I have already indicated, I think there is cause for optimism.

The fact that you committed the offences whilst under the influence of drugs is not an excuse particularly, as I have observed, where offences of this kind are as a matter of common experience not unlikely when people take drugs of this kind, and particularly a cocktail type of situation which appears to have been the case here."

15 Earlier his Honour had said that he proposed to allow a significant reduction in the sentences imposed for the matters available in mitigation of punishment, the pleas of guilty and the accepted remorse. His Honour said that he would "allow a reduction of in the order of 25 per cent of the sentence I would otherwise have imposed". It is apparent, in my opinion, that when his Honour spoke of a reduction of 25 per cent of the sentence, he was talking in general terms of all the sentences to be imposed and not about any specific sentence; nor was his Honour speaking of a reduction of precisely 25 per cent. He said he would make a reduction of that order.

16 The first ground of the application complains that the sentencing Judge erred in law, either because the sentences imposed do not reflect a reduction of any degree or, alternatively, if a reduction of 25 per cent was allowed before the reduction of one third required by the transitional provisions applicable to the amendments made to the Sentencing Act, then the sentence in respect of count 3, the second of the assaults occasioning bodily harm, would have been 5 years and 4 months, working backwards, so to speak. In other words, one takes the sentence of 2 years and 8 months, adds 50 per cent to reflect the one third reduction, resulting in a term of 4 years and then adds another third of that period to reflect a 25 per cent reduction to get the starting point of 5 years and 4 months; wrong in law, the applicant says, because the maximum available was imprisonment for 5 years.

17 Alternatively, it is asserted by this ground that one can apply that mathematical process to all the sentences and come up with terms of imprisonment which are individually said to be manifestly excessive. Finally, it is said, the error may be demonstrated by applying this mathematical process to all the sentences so as to result in what is described as "the effective total of the head sentence imposed of 9 years and 8 months", a result said to be manifestly excessive.

18 In my respectful opinion, this ground is entirely without merit. It applies a mathematical process which is completely divorced from reality. It is apposite to repeat the remarks I made, with the agreement of Steytler and Miller JJ, in Grimwood v The Queen [2002] WASCA 135 at [16] - [19]:

"His Honour said that he would allow a 'significant credit' for that fact. In imposing sentence his Honour went on to say that but for the early plea of guilty and other matters of mitigation, he would have sentenced the applicant to a term of 18 years imprisonment but, having regard to those matters, he reduced the sentence to a term of 14 years imprisonment. The applicant calculates that that is a discount of just over 22 per cent. Relying upon decisions of this Court, particularly Miles v The Queen (1997) 17 WAR 518, the submission is made that it is common for a discount for an early plea to range between 25 per cent and 35 per cent and if the 22 per cent includes other matters having a mitigatory tendency, it follows, so the argument runs, that the discount must be seen to be manifestly inadequate and the sentence should be held to be manifestly excessive on that ground alone.

To my mind, the argument fails for at least two reasons. In the first place, the process of taking a proportion expressed as a percentage of a notional starting point, even one articulated by the sentencing Judge, and endeavouring to demonstrate that the sentence imposed is manifestly excessive having regard to the percentage figure, is an illusory process because the so-called 'starting point' is not the sentence, the adequacy or proportionality of which the appellate court is required to measure so that the appeal will succeed if it can be demonstrated that the exercise of sentencing discretion has miscarried because the sentence finally imposed is manifestly excessive.

Secondly, in my opinion, although this Court has observed from time to time, including in Miles at 521, that the substantial discount required to be given by the law (Sentencing Act 1995 (WA) s 8(2)) has in fact been able to be seen to be in the order of from 20 to 25 per cent up to 30 to 35 per cent, depending upon the circumstances, it has never been suggested, and in my respectful opinion rightly so, that it is an appropriate way for an appellate court to consider the adequacy of a sentence, to allocate periods of time or percentage points applied to a starting point for the purpose of deciding whether the sentence imposed is manifestly excessive or inadequate: see also Cameron v The Queen [2002] WASCA 81 per Miller J, with whom Murray and Steytler JJ agreed, at pars [16] - [19].

That is because, to put it shortly, as did the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624 [46], 'Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.' The attempt to measure the size of the discount diverts the appellate court from the essential task of determining whether the sentencing discretion has miscarried because the Judge has made some error of principle or because, even though error is not particularly identifiable, it is demonstrated because the final result is manifestly excessive or inadequate. In my opinion, ground 1 is misconceived."

19 In my opinion, ground 1 of this application is equally misconceived. It constructs a sentence or series of sentences which were not imposed by the sentencing Judge by a mathematical process which the Judge did not apply and seeks to demonstrate that if it was accepted that the sentences were individually and in aggregate what the outcome of that mathematical process would establish, then those sentences would be manifestly excessive. The short answer is that it might be so, but that was not what the sentencing Judge did.

20 It must be accepted that his Honour did what he said he was doing. He reduced the sentences he imposed by in the order of 25 per cent having regard to the identified matters of mitigation. The question then is whether the resultant sentences were to be regarded as manifestly excessive. In my opinion, that cannot be said of any of the sentences imposed.

21 Ground 2 complains of the accumulation of the sentence imposed for count 3, the second, and by far the more serious, of the assaults occasioning bodily harm. His Honour expressly reminded himself of the 5-year maximum term. He said he would have imposed a sentence of 4 years imprisonment and he reduced it by a third to a term of 2 years and 8 months. His Honour said of that sentence:

"I make it cumulative because it seems to me that although it arises essentially out of the same incident, it was a significantly discrete and separate offence of a very serious kind."

22 Ground 2 complains about this decision. It asserts that the total criminality of the applicant's conduct did not justify this sentence being made cumulative upon the sentence imposed for unlawful detention. It says that the applicant's offending conduct towards the complainant the subject of count 1 was the same as, and merged with, the conduct said to constitute count 3. All the sentences, it is asserted, should have been ordered to be served concurrently as they were part of one incident.

23 The law in this regard was recently restated by McLure J, with whom Malcolm CJ and Wheeler J agreed, in R v Faithfull [2004] WASCA 39 at [25] - [28]. Her Honour said that she thought that the state of the law in the area was not entirely satisfactory, expressed, as it was, in terms of the "one transaction" or "continuing episode" rule where a number of offences were committed which might together be taken to constitute a "single invasion of the same legally protected interest". However, her Honour said that it was clear, relying on the judgment of McKechnie J in R v White [2002] WASCA 112, a judgment in which Wallwork and Murray JJ agreed, that the rules formulated in respect of the decision whether to order cumulative service of sentences were merely general rules which might provide some guidance. The final touchstone of principle in this area was always the consideration whether the sentences imposed individually and in their aggregate were properly proportionate to the total criminality involved in the offending behaviour.

24 In Pearce v The Queen (1998) 194 CLR 610 at 624 McHugh, Hayne and Callinan JJ made the point that the proper application of principle where there were multiple offences was to start with properly proportionate sentences for each offence; then the court should move to consider questions of cumulation or concurrence, keeping firmly in mind that where proper accumulation would result in an aggregate punishment which was too great, it would need to be sacrificed to some degree, at least, so as to avoid a disproportionate total term. This, of course, is the final stage in the sentencing process, involving the application of what has come to be called the totality principle: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308.

25 In this case, in one sense, the three offences for which the applicant was indicted might be regarded as manifestations of one incident and it is undoubtedly the case that the complainant, or the victim of the offences, was unlawfully detained when she desperately tried to make her escape from the continuation of the assault occasioning bodily harm which was count 3 on the indictment.

26 However, in another sense, that offence of assault occasioning bodily harm was a distinctly different and discrete offence committed against the victim, from the assault occasioning bodily harm which was count 2 in the indictment and both those offences were discretely different from the application of force to the complainant, including the forceful closing of the front door of the unit, which force did not, of itself, cause her bodily harm, but was designed to prevent her escape. Subject to questions of totality, in my opinion, not only were the individual sentences well within the discretion of the sentencing Judge, but the decision to order the sentence for the second assault occasioning bodily harm to be served cumulatively was appropriate to recognise the particular seriousness and additional criminality involved in the commission of that offence.

27 I move on then to grounds 3, 4 and 5, all of which seem to me to express the complaint that the proper application of the totality principle would lead to the conclusion that the aggregate term of 4 years and 10 months was manifestly excessive.

28 The proper application of the totality principle has been most recently considered by this Court in an authoritative way in Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330. In that case this Court reiterated the view that by the totality principle was meant that final stage of the sentencing process in which the Court, having imposed properly proportionate individual terms where there were multiple offences and having made proper decisions about cumulacy and concurrency, took a last look at the result and asked itself the question whether the aggregate term was itself a properly proportionate response to the criminality involved in the offences committed by the prisoner.

29 That might lead to a reduction because the Court would have regard to the fact that as that aggregate term increased in length, so the severity of the aggregate sentence increased exponentially. In other words, the increase in severity would not be expressed by a straight line graph, but by a graph which rose more markedly as a measure of severity as the length of the term increased. Although the outcome might be expressed as a crushing sentence which merited reduction, the ground for reduction was not that it was subjectively or objectively to be regarded as crushing in effect, but simply that the final result was to be regarded as

disproportionate to the criminality involved in all the circumstances of the case.

30 In my view, there is no total disproportion sufficient to require this Court to draw the conclusion that his Honour's discretion miscarried so as to produce a result which in aggregate is manifestly excessive. It is appreciated, as his Honour the sentencing Judge appreciated, that the applicant was a young man. Although he had a previous criminal history, it was not as bad as it might have been and when he committed these offences, he had not been sentenced to a term of imprisonment. He was remorseful and he appreciated, finally, that his conduct was largely driven by the deleterious effects of his abuse of illicit drugs. He had made progress since his incarceration in an attempt to overcome his drug addiction.

31 However, it is difficult to avoid the conclusion drawn by the sentencing Judge that the offences were very serious indeed. In particular, it seems to me that the second assault occasioning bodily harm was about as serious an example of this offence as it would be possible to find. The applicant endeavoured to throttle his victim. He exerted such force that she lost consciousness, not once but twice. When she regained consciousness, he renewed his attack, having already assaulted her so as to cause bodily harm by striking her across the back with some sort of rod with sufficient force to cause injury. Further, he persisted in his attack despite her frantic efforts to escape, which he prevented. It seems, also, that at one time during a lull in the attack the applicant obtained a knife which, however, to his credit, he never used in the attack upon his victim. Finally, having been served with a properly obtained violence restraining order, he ignored its terms and made contact with the complainant when that was expressly forbidden.

32 In my view, an aggregate term of 4 years and 10 months imprisonment was not manifestly excessive and was within the range of sentencing discretion as a term properly proportionate to the offences for which the applicant was to be punished. I would dismiss the application for leave to appeal.

33 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray ACJ. I agree with those reasons and have nothing to add.

34 MCKECHNIE J: I agree with the reasons of Murray ACJ and with his conclusion that the application for leave to appeal should be dismissed.