JONES -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 30 (17 February 2023)

1. The judge described the victim's injuries and their treatment as follows:[3]

His face and forehead struck the pavement as a result of which he suffered a hyperflexion injury, violently forcing his head backwards as a result of which he suffered a fractured vertebra at the C6 level of his cervical spine, and a ruptured disc at the C6/7 level.

...

... The injuries suffered by [the victim], the fractured C6 vertebra and the ruptured disc at the C6/7 level clearly constitutes grievous bodily harm in that without medical intervention it was likely to cause permanent injury to health being paralysis of his arms or parathesis in his arms with associated loss of strength and use of his arms.

I accept the evidence of Dr Christiner that the injuries suffered by [the victim were] of a kind which were such as to cause or be likely to cause permanent injury to health, and the injury suffered by [the victim] left him with an unstable cervical spine which, without medical intervention and surgery, was likely to cause progressive weakness and altered sensation in his upper limbs.

To stabilise the injury [the victim] underwent a C6/7 anterior cervical discectomy and fusion operation during which the disc at the C6/7 level was removed and replaced with a bone graft taken from [the victim's] hip. And then the C6 and C7 vertebra were held together with a plate which will cause the vertebrae in time to fuse together. [The victim] was hospitalised for six days from 22 December to 28 December. He remained under the review of the spinal outpatient clinic until finally discharged in April 2020.

It was, on my view, an extremely serious injury suffered by him. It is fortunate he did not suffer a more serious injury such as a high level cervical fracture or a serious head injury, given the degree of force with which you struck him in the back of the head and the force with which he fell to and hit the footpath unconscious.

1. The judge found that the following matters reflected upon the seriousness of the offending:[4]
   1. The appellant struck the victim without warning, when the victim was unprepared, and was not expecting to be hit. The victim was vulnerable and defenceless.
   2. The appellant, with the cast on his arm, struck the victim with a forceful blow, knocking the victim immediately unconscious, as a result of which he fell heavily to the ground, hitting his face and head.
   3. The significant injury to the neck which the victim suffered, and for which he underwent the surgery referred to earlier. The victim was required to wear a neck brace, and was deemed unfit for work for a period of time.
   4. The other injuries suffered by the victim, including concussion, chipped teeth requiring dental work, and grazes and bruising to his head.
   5. It is likely the victim will suffer permanent lifelong injury, being a restriction in neck movement. He will need to be careful about being involved in any heavy activity in which forces are applied to the neck.
   6. Whilst the injury the victim suffered was a serious injury, it was fortunate that a far more serious injury, such as a head injury with brain damage, was not suffered, given that there is always a risk of such injuries where a person is knocked unconscious and falls to a hard surface, such as a pavement.

Other sentencing considerations referred to by the judge Personal circumstances[5]

1. At the time of sentencing, the appellant was 33 years old. The appellant and his three sisters were taken from his mother when he was around 6 years old. The judge accepted this was traumatic, although noted that despite this the appellant then grew up in a positive and supportive family environment. The judge noted that the appellant has reconnected to his biological mother and one of his sisters while in prison prior to sentencing.
2. The appellant has four young children, one of whom has a neurological condition requiring daily medical care and rendering him wheelchair bound. The judge accepted it was difficult for the appellant to be separated from his children and stressful for the mother of the child in the wheelchair to care for him while the appellant was in prison. The judge acknowledged, in accordance with the appellant's letter to the court upon sentencing, that the separation between the appellant and his children while the appellant was on remand was difficult, and that the appellant was concerned that he was not around to be a role model for his oldest son. The judge noted the appellant was in a long-term relationship and that he had positive family relationships to assist him when he is released into the community.
3. The judge noted the appellant has trade qualifications, has been consistently employed since leaving school in year 10, and ran his own sheet metal fabrication business, which he intended to re-establish upon his release. The judge also noted that the appellant had several employment offers upon his release from prison.
4. The judge noted the appellant's prior criminal record. In addition to minor criminal and road traffic offences, his most recent conviction was for an offence of being armed, or pretending to be armed, in a way that may cause fear. The judge said that this conviction was relevant to the current offending as it similarly involved violence or threatened violence in public, to an unknown member of the public. The appellant's previous criminal record, particularly the most recent conviction, highlighted the need for the sentence to reflect personal deterrence. The judge also noted that as a result of the appellant's criminal record, he did not appear at sentencing as a person of prior good character.

1. The judge received letters from the appellant's parents, his youngest sister, his cousin and some of his personal acquaintances. The judge noted that, in these letters, his referees stated that:
   1. the appellant has a positive character;
   2. the appellant is well regarded in his profession, and has a strong work ethic;
   3. the appellant's family is supportive of him;
   4. the appellant's family is able to provide support to him upon his release into the community, including by providing employment;
   5. the appellant's children are important in his life; and
   6. the appellant's violent offending is out of character for him.

1. The judge stated that the appellant's work background and employment history was 'to [his] credit'.
2. The judge stated that the appellant did not have the benefit of a guilty plea to provide a sentence discount, and found that the appellant did not demonstrate any remorse for his offending, aside from a letter he provided to the court at sentencing. The judge found that, despite the remorse expressed in the letter, the appellant still appeared to justify his actions by contending he was 'confronted with an altercation', which 'quickly escalated' causing him to instantly react by hitting the victim.
3. The judge rejected this explanation, as it was inconsistent with the evidence adduced at trial, which demonstrated that the appellant 'took a stance and readied [himself]'. The judge concluded that the remorse offered in the letter was tempered by the appellant attempting to downplay, or justify, his actions.
4. The judge noted there was some insight, as the appellant stated he '[understood] the situation could have been handled in a more peaceful manner'. This was to the appellant's credit.
5. The judge noted the appellant had spent 2 years on remand in custody, in which time he was able to live in a self-care unit and complete various courses. These were to the appellant's credit.

1. The victim detailed the nature of his injuries in the victim impact statement. The victim noted the impact of the injuries, including lingering effects from the bone graft, restrictions on his neck movements, frequent pain when performing work and in flying in connection with his 'fly‑in/fly‑out' employment, together with adverse sleeping patterns and depression. The victim stated he lost six months of employment due to his injuries, and was concerned about his ability to work in the long term.
2. The victim also noted that his family relationships had deteriorated since the offending.

1. The appellant referred to a number of cases which, he contended, were broadly comparable. The cases referred to were Ugle v The State of Western Australia;[9] Kere Kere v The State of Western Australia;[10] Yaqubi v The State of Western Australia [No 2];[11] Peake v The State of Western Australia;[12] Bowe v The State of Western Australia;[13] Spence v The State of Western Australia;[14] Hornell v The State of Western Australia;[15] and The State of Western Australia v Saleh.[16]
2. In these cases, the sentences ranged from 16 months' immediate imprisonment to 3 years 8 months' immediate imprisonment. The appellant submitted, in effect, that on this basis, the sentence of 5 years' immediate imprisonment was manifestly excessive.
3. The respondent submitted, in effect, that the judge's sentence was within a sound discretionary range. The respondent submitted that the more serious examples of unlawfully doing grievous bodily harm resulted in sentences of immediate imprisonment between 3 and 5 years.[17]
4. The respondent submitted, in effect, that none of the cases cited by the appellant is truly comparable as those cases did not involve the fracture of neck vertebrae. The respondent also referred to cases involving other offences where there were fractures to the cervical spine: Vander Waide v The State of Western Australia[18] and The State of Western Australia v Yamalulu.[19]

1. Ground 2 alleges that the judge erred by considering six factors in sentencing that were not available on the evidence. In this regard, the appellant submitted:
   1. The extent to which the victim had returned to work, and the nature of his responsibilities at work at the time of sentencing, had not been established. The judge could have adjourned the sentencing hearing to enable further information to be obtained, or alternatively he could have commented that the issue was in the appellant's favour.
   2. The description of the appellant's right arm as having a 'cast' on it was an 'incorrect description'.
   3. Although the injury was characterised as an 'extremely serious' injury, it was not 'life threatening'. Insofar as it was characterised as a 'broken neck', the judge should have considered that 'not all broken necks are equal in seriousness'.
   4. The offending was not unprovoked, but in fact was partially provoked by the victim 'at least being a nuisance'. It should have been characterised as excessive self‑defence.
   5. The findings that the victim is likely to suffer a permanent lifelong injury, and will need to be careful regarding heavy activities where force is applied to his neck, were unsupported by the evidence.
   6. The judge did not positively state that he was not taking into account the appellant's potential involvement in an outlaw motorcycle gang. This was despite the fact that, in the course of argument, the question of his involvement in the motorcycle gang had been raised.

1. It is convenient, logically, to commence with a consideration of ground 2 first.

1. In our view none of the contentions made by the appellant is made out.
2. As to the first, the judge canvassed the medical evidence in detail (see [13] above), and took into account the victim impact statement (see [25] ‑ [26] above). The judge found the victim had lost about six months work. The judge implicitly accepted the victim had returned to work, finding that the victim was suffering restricted neck movement together with 'frequent pain when performing his w[20]k' over two years after injury.20
3. The judge explored the effect of this evidence with counsel for the appellant, including in the following exchange:[21]

HERRON DCJ: It's not entirely clear, I accept from the victim impact statement regarding his current capacity for work, but it certainly seems to me that he suffers some ongoing restrictions around being able to perform his pre‑assault employment.

[COUNSEL FOR THE APPELLANT]: Yes, your Honour. And that's really not contested. It's what's to be expected of someone in that chosen field after undergoing such an injury.

1. In this context, the judge made the finding referred to in [14.5] above.
2. Neither party sought an adjournment at the time. The judge was not obliged himself to adjourn the sentencing hearing for further evidence to be obtained on this topic. His Honour was entitled to draw the inference from the evidence which he did, particularly in the context of the matter ultimately not being put in issue by counsel for the appellant.
3. As to the second matter referred to by the appellant, in the course of argument at the sentencing hearing, the judge enquired of counsel for the appellant whether it would be open to find that the appellant struck the victim using a 'plaster' cast, 'something that was hard' and likely to cause more force when connecting with the back of the victim's head. Counsel for the appellant observed that the cast did not appear to be a 'solid plaster cast', but, rather, a 'synthetic mechanism strapped together with soft pieces of fabric as well'.[22] Counsel for the State agreed with that description, and said that it did not appear to have been a plaster cast, but, rather, a black cast of some fabric, so that it may not have had much weight attached to it.[23]
4. In this context, in his sentencing remarks, the judge made no reference to a 'plaster cast'. His Honour merely referred to the appellant's right arm being 'encased in a cast'.[24] The judge did not find as a fact that it was a plaster cast. His Honour's description was accurate and in accordance with the parties' terminology in submissions. Also at the trial, it was described as a cast by the State prosecutor,[25] a witness,[26] defence counsel,[27] and the judge.[28]
5. As to the third matter relied on by the appellant, in exchanges with counsel for the appellant in the course of argument the judge suggested, and counsel for the appellant agreed, that the victim had suffered 'in effect' a broken neck.[29] This shorthand was not, however, adopted in the formal sentencing remarks. In his sentencing remarks, his Honour outlined, with precision and detail, the medical evidence, the nature of the injury, and its consequences for the victim (see [13] above).
6. As to the fourth matter alleged by the appellant, the judge was correct to describe the attack as unprovoked on the evidence. The point, correctly, made by the judge (see [11] above) was that whilst the appellant may have regarded the victim as being a 'nuisance' at the time, that provided no basis upon which to engage in such a forceful attack in the circumstances referred to in [9] and [10] above.
7. In relation to the fifth matter relied on by the appellant, the observations referred to in [34] ‑ [37] above also apply. Also, the inference was available from the nature and extent of the injuries that he would need to take care regarding any heavy activities involving force being applied to his neck.
8. In relation to the sixth matter relied on by the appellant, the judge raised, both with counsel for the appellant and counsel for the State, a question as to whether there was any significance in mention having been made at the trial of the appellant's involvement in an outlaw motorcycle gang. Both counsel said, in effect, that the matter did not arise on sentencing. The judge acknowledged that.[30] The judge made no mention of it thereafter. When delivering his Honour's sentencing remarks, his Honour plainly did not take the matter into account. There is no error in the judge not mentioning a factor which he was not taking into account.
9. Ground 2 should be dismissed.

1. To allege that a sentence is manifestly excessive or inadequate is to contend that an error is inferred from an outcome of the exercise of the sentencing discretion which is explicable only by an error of principle. That is, as Dixon, Evatt and McTiernan JJ noted in House v The King:[31]

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The general principles governing appeals contending that a sentence is manifestly excessive are well established:[32]
   1. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of 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 in question, and the personal circumstances of the offender.
   2. The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
   3. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
   4. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
   5. When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
2. As noted above, the maximum penalty for an offence against s 297(1) of the Criminal Code is 10 years' imprisonment.
3. This court has often cited Trompler v The State of Western Australia[33] as to the factors which are generally of significance in assessing criminality in an offence of doing grievous bodily harm, namely (1) the nature of the resulting harm, (2) the nature of the act which causes the injury and (3) the background and circumstances of the offence.[34]
4. In the present case, the offence involved a forceful unprovoked surprise attack on a vulnerable victim which resulted in an injury having significant effects on the victim and carried the real risk of causing even greater harm. There were limited mitigating factors and, in particular, the appellant did not have the benefit of a plea of guilty to the offence.
5. As to customary sentencing standards, in Allen this court also said:[35]

[61] This court has considered the range of sentences imposed for the offence of unlawfully doing grievous bodily harm in a number of cases. There is no single tariff for the crime of unlawfully doing grievous bodily harm contrary to s 297(1) of the Criminal Code. However, as a matter of fact, the ordinary disposition is a sentence of immediate imprisonment. It has been noted on a number of occasions that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, with relatively serious examples of that offence attracting sentences of 3 to 5 years. A sentence in the range of 3 to 5 years will commonly be imposed in cases involving the use of weapons. ...

[62] Of course, recognition that a sentence stands outside the range of sentences commonly imposed for the offence in question does not establish that it is manifestly excessive. The problems with attempting to identify an available 'range' of sentences were averted to in Barbaro v The Queen. There the plurality observed that manifest excess or inadequacy can be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. The plurality also noted that it is, then, common to speak of a sentence as falling outside the available range of sentences. Their Honours went on to caution that:

'the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. (original emphasis)'

[63] Further, the High Court has emphasised that the range of sentences which have historically been imposed do not establish the outer bounds of the permissible discretion. As the court observed in Kilic, past cases:

'may provide a relevant 'yardstick' by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'. (citations omitted)'

[64] That is not to deny that customary sentencing practice is an important consideration in assessing a submission that a sentence is manifestly excessive or inadequate. It may well be that the difference between the sentence in question, on the one hand, and sentences passed in comparable cases forming part of an established sentencing pattern, on the other hand, is so large as to lead to the conclusion that there must have been some misapplication of principle, even though where and how is not apparent from the sentencing reasons. However, as Gageler and Gordon JJ observed in Dalgliesh:

'Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.'

[65] Rather, as French CJ, Keane and Nettle JJ observed in Pham, the consistency in sentencing that is sought by this court in exercising its appellate jurisdiction is consistency in the application of relevant legal principles. As their Honours noted:

'Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.'

Whether the result of the sentencing exercise drives the appellate court to the conclusion that there has been some misapplication of principle will depend on whether the result can be characterised as unreasonable or plainly unjust.

[66] The rule against appellate courts 'tinkering' with sentences is a corollary of the need for the sentence imposed to be unreasonable or plainly unjust before error of principle can be inferred from the result. It may also be regarded as a corollary of recognising that 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice' and that there is no single unique correct sentence. The absence of a substantial difference between the sentence which the appellate court regards as appropriate and the sentence imposed at first instance is inconsistent with a characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles). (footnotes omitted)

1. We have examined the cases referred to by each of the appellant and the respondent to which reference has earlier been made. It is unnecessary to reproduce the facts and circumstances of all of the sentencing outcomes in each of those cases. There are some comparable features between some of the cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
2. Having considered the matters correctly taken into account by the judge summarised in [5] ‑ [26] above, we are not persuaded that a sentence of 5 years' immediate imprisonment is unreasonable or plainly unjust in accordance with the principles in House v The King. In this regard, the following matters seem to us to be of most particular significance for present purposes:
   1. The offence was not aggravated by the fact that the appellant pleaded not guilty to it. However, although he was entitled to proceed to trial, the appellant did not have the mitigation that a plea of guilty would have brought.
   2. The unprovoked nature of the attack.
   3. The forceful nature of the attack, and its apparently calculated nature in the circumstances referred to at [10] above, inflicted on a defenceless and vulnerable victim.
   4. The appellant's indifference to the consequences of the assault, marked by his 'simply [having] walked away'.
   5. The seriousness of the injuries, including the fracture of cervical vertebrae and ruptured disc.
   6. The potential for the assault to have caused more serious injury, including brain damage.
   7. The likelihood of permanent injury in the form of restricted neck movement.
   8. The limited remorse shown by the appellant.
   9. The offence was not aggravated by the fact that the appellant had a prior criminal record or that previous sentences had not achieved the purpose for which they were imposed. However, the appellant's prior criminal record including, most relevantly, his prior conviction for an offence of being armed, or pretending to be armed, in a way that may cause fear, underscored the importance of personal deterrence.
   10. The absence, more generally, of mitigating factors of significant weight in all the circumstances of the case.

1. Leave to appeal should be refused and the appeal should be 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

[1] Sentencing ts 363 - 366, 369; Sentencing Appeal Book (SAB) 59 - 62, 65.

[2] See [31] and [33] ‑ [43] below.

[4] Sentencing ts 366 - 367; SAB 62 - 63.

[5] Sentencing ts 367 - 368, 370; SAB 63 - 64, 66.

[7] Sentencing ts 368 - 370; SAB 64 - 66.

[8] Sentencing ts 368 - 369; SAB 64 - 65.

[9] Ugle v The State of Western Australia [2018] WASCA 221.

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

[11] Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187.

[12] Peake v The State of Western Australia [2015] WASCA 239.

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

[14] Spence v The State of Western Australia [2014] WASCA 171.

[15] Hornell v The State of Western Australia [2021] WASCA 137.

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

[17] The State of Western Australia v Smith [2016] WASCA 153 [93].

[18] Vander Waide v The State of Western Australia [2019] WASCA 148.

[19] The State of Western Australia v Yamalulu [2019] WASCA 6.

[25] See, for example, trial ts 93, 237.

[27] See, for example, trial ts 231, 287.

[28] See, for example, trial ts 233, 237, 308.

[30] Sentencing ts 353, 362; SAB 49, 58.

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

[32] See, for example, Franchina v The State of Western Australia [2017] WASCA 56 [38].

[33] Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11].

[34] See, for example, Allen v The State of Western Australia [2017] WASCA 203 [67].