Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Offences of causing grievous bodily harm, wounding and being armed in circumstances likely to cause fear - Whether sentence offended totality principle - Whether sentences should have been concurrent - "One transaction" rule - Weight to be given to limited criminal record - Deliberateness of stabbing - Turns on own facts

Criminal Appeals Act 2004 (WA), s 27

Criminal Code (WA), s 68(1), s 297, s 301, s 313(1)(b)

Application for leave to appeal on ground 2 refused

1 The appellant was convicted, by his own pleas of guilty, of four offences and sentenced in the following manner:

Unlawfully causing grievous bodily harm to Gary Cherry - s 297 Criminal Code

Unlawful wounding of Wade Samuels - s 301 Criminal Code

Being armed with an offensive instrument in circumstances likely to cause fear - s 68(1) Criminal Code.

Common assault of Liam Early - s 313(1)(b) Criminal Code.

2 The sentences imposed on counts 1 and 2 were to be served concurrently, and those imposed on counts 1 and 3 were to be served cumulatively, resulting in a total effective sentence of 32 months, with eligibility for parole.

3 The appellant now appeals against the sentence, having been granted leave to appeal on grounds 1 and 3, and applies for leave to appeal on ground 2.

4 In the early morning of 22 June 2008, the appellant went to the Exit Bar with his sister, having arranged to carry her purse and share a taxi home. He was intoxicated, having consumed a considerable quantity of alcohol earlier in the evening. After the appellant entered the bar, he was met by a security guard and informed that his sister was outside and had been refused entry. When he went outside to see his sister, he found her upset and she told him that she had been pushed by a security guard and had been knocked onto the pavement. The appellant went back inside the bar to find the security guard who had pushed his sister, and when security realised his intentions, he was asked to leave. As he was walking out, Liam Early, another security guard, tried to remove a bottle from him and the appellant punched him in the face - the common assault. After this occurred, the appellant and his sister were escorted home by the police.

5 After they arrived home, the appellant decided to return to the bar to fight Early. This was approximately two hours after the incident described above. The appellant took a knife and his sister took a sawn-off pool cue with nails taped to one end. When they arrived at the bar, his sister attacked Early with the pool cue and while staff tried to restrain her, the appellant tried to stab Early. When Gary Cherry, another security guard, kicked the appellant off balance, he slashed at Cherry, striking him on the left wrist causing bleeding and permanent nerve and tendon damage (count 1). A patron, Wade Samuels, tried to restrain the appellant from behind and was stabbed in the thigh, causing a wound which required sutures (count 2).

6 The appellant was 26 years old at the time of the offences. He had a limited criminal record, having no prior convictions for violent crime. He had not previously been given a custodial sentence. The appellant grew up in a close-knit family and had always been protective of sister, living with her and her son after she recently left a violent relationship. He had been employed since leaving school in year 11.

7 In his sentencing remarks, his Honour referred to the appellant's personal circumstances and made the following comments:

Your prior criminal record is not an aggravating feature of the offences for which you are being sentenced by me but your record demonstrates that you are not entitled to any significant leniency in relation to good character.

I have considered the sentencing submissions made by your lawyer, together with the pre-sentence report which has been provided to me dated 17 September 2008. Alcohol was a contributing factor in this offending and also in your past it has been a problem with you. As I have said you cooperated with the police and participated in a video record of interview. You pleaded guilty on the fast-track system and of course that is to your credit and a mitigating factor for which you are entitled to a reduction in the sentence that would otherwise be imposed upon you.

...

I'm required to impose a sentence in relation to each of the offences commensurate with the seriousness of what you did. The seriousness of the offences must be determined by looking at the maximum penalties which I have already outlined for you, the circumstances of the commission of the offence and in that regard I take account of your concern in relation to your sister's wellbeing, any aggravating factors and mitigating factors. I take all of those matters into account. (ts 15 - 16)

8 His Honour concluded that, given the seriousness of offending, he had no option but to order a term of immediate imprisonment. After reaching a figure for each count, his Honour considered whether the terms should run cumulatively or concurrently:

I must of course consider questions of cumulation and concurrence and totality in relation to the penalties which I have imposed upon you - the sentences of imprisonment. Totality requires me to reconsider all of your offending and to ensure that the total effective sentence bears a proper relationship to your overall criminality viewed in its entirety and having regard to the circumstances of the case, including those referable to you personally.

The second limb is that I should not impose a crushing sentence on you. The word 'crushing' in this context denotes the destruction of any reasonable expectation of a useful life after release.

The usual consequence of the application of totality is to arrive at an ultimate aggregate sentence which is less than that which would have been arrived at by a straightforward adding up of the terms imposed. In the circumstances I propose to order that certain terms be served concurrently with others in order to arrive at a total sentence that reflects your criminality as a whole and removes any crushing element that might otherwise be present in the sentence.

In order to achieve that end, I direct the sentence imposed on counts 1 and 3 be cumulative upon one another, making a total of 32 months. I direct that the remaining sentence of 12 months be served concurrently on the sentence in relation to count 2. (ts 17 - 18)

9 Pursuant to s 27 of the Criminal Appeals Act 2004 (WA), the court must not grant leave to appeal in respect of any ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. Leave to appeal on grounds 1 and 3 has been granted on the papers. However, Wheeler JA was not satisfied on a preliminary assessment of the matter that ground 2 had a reasonable prospect of success, and thus ordered that the application be listed for hearing. The basis of ground 2 is that the sentencing judge erred in ordering that counts 1 and 3 be cumulative, in that this infringed the totality principle.

10 In considering the appellant's submission that the totality principle required his Honour to order the sentences be served concurrently, it is useful to consider Steytler P's analysis of the 'one transaction' rule in LJM (A child) v The State of Western Australia [2005] WASCA 172; (2005) 30 WAR 38:

The so-called 'one transaction rule' or 'continuing episode rule' is essentially that concurrent sentences should be imposed in respect of a number of offences which 'arise from substantially the same act or same circumstances or a closely related series of occurrences': R v Brown (1982) 5 A Crim R 404 at 407. In Attorney-General v Tichy (1982) 30 SASR 84 at 93 the rule was said to apply in a case of 'one multi-faceted course of criminal conduct' and, in Pearce v R (1998) 194 CLR 610 at 650 [120] Kirby J said that a judge may make sentences for multiple offences of which an accused is convicted concurrent if they are 'considered to be manifestations of the one criminal enterprise, transaction or episode'.

The underlying principle of the 'rule' has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, Principles of Sentencing (2nd ed) at 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: see, for example, R v Scanlon [1987] NTCCA 8; (1987) 89 FLR 77.

...

The so-called 'rule' is not a rule at all. It is merely a guideline. In R v Ruane (1979) 1 A Crim R 284, it was described as a 'good working rule'. Each case depends upon its own circumstances and it is for the sentencing Judge to determine whether the application of the guideline would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 at [28], per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 - 721. As was said by McHugh, Hayne and Callinan JJ in Pearce at 623, the punishment to be exacted should reflect what an offender has done and should not be affected by the way in which the boundaries of particular offences are drawn. [15] - [17]

11 As this analysis, and the cases referred to by Steytler P, make clear, there is no such "rule" as the one transaction rule. That is, even if it is possible to classify a number of offences as forming part of the one "transaction" (however that word may be understood), it does not follow that all sentences in respect of those offences must be made concurrent.

12 Ground 2 is founded upon the misapprehension that, once a "transaction" is identified, concurrency must follow. It cannot succeed, for that reason alone. The real question which ultimately arises is whether the aggregate sentence is, overall, proportionate to the criminality of the conduct in all the circumstances of the case. That issue is raised by ground 3. We would refuse leave in respect of ground 2.

13 The learned sentencing judge gave consideration to the overall criminality of the conduct in imposing the sentences, as he said:

In the circumstances I proposed to order that certain terms be served concurrently with others in order to arrive at a total sentence that reflects your criminality as a whole and removes any crushing element which might otherwise be present in the sentence. (ts 18)

That observation adequately captures the principles his Honour was required to apply, so that there can be no complaint of express error.

14 However, the appellant submits that, in this case, the total effective sentence of 32 months did not sufficiently take into account the appellant's fast-track pleas of guilty, his remorse, co-operation with the police, immediate confession, limited criminal record and concern for his sister's wellbeing. His Honour expressly mentioned each of these factors when assessing the proportionality of the total effective sentence. The question for this court, then, is simply whether the aggregate sentence is disproportionate, having regard to all relevant factors in this case, and to accepted standards of sentencing in respect of offences of this kind (see Vagh v The State of Western Australia [2007] WASCA 17 at [47] - [49] per Roberts-Smith JA, [76] per McLure JA; Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 at [28] per Steytler P and McLure JA).

15 The appellant submits that an important factor in this case was the appellant's concern for his sister. An appropriate response to this submission is found in the comments made by Roberts-Smith JA in Harvey v The State of Western Australia [2005] WASCA 117:

Revenge, whether in response to an act perpetrated upon one's self or upon another, cannot be allowed to be a mitigating circumstance. [22]

16 This was not a situation where the appellant acted the way he did in order to protect his sister from harm; rather, it was the result of a desire for revenge against the security guard who pushed her.

17 The appellant's submissions concerning the appellant's limited criminal record also reveal a misapprehension. A "limited" record is not the same as positive good character, which is always a mitigating factor, since it generally indicates that there may be a lesser need for personal deterrence than is called for where an offender has a bad record, and it may indicate that efforts at rehabilitation are likely to be successful. The relevance of a "limited" record would depend in each case upon the nature of that record, and of the offence in question. In our view, his Honour's assessment that the appellant's record did not entitle this appellant to "significant" leniency was correct.

18 So far as the question of proportionality is concerned, his Honour reduced the overall sentence by making counts 1 and 2 concurrent with each other. Both offences were serious, as was the brandishing of the knife by the angry and intoxicated appellant, the subject of count 3. We are not persuaded that his Honour's aggregate sentence was disproportionate to the appellant's conduct, having regard to the circumstances of the offending and to all mitigating factors.

19 This ground contends that the learned sentencing judge erred in not sentencing the appellant on the basis of the plea of mitigation, which asserted that the appellant did not deliberately stab the victims. The appellant's counsel said, rather, that the injuries were caused by the appellant recklessly waving his knife around. We assume, for the purpose of this case, that a deliberate stabbing will, generally, be more serious than the reckless "waving" of a knife, although much will depend in each case upon the intention of the offender, the nature of the weapon, and all the circumstances of its use.

20 Counsel for the State, at sentencing, described the appellant's actions as attempting to stab Early, then "slashing" at Cherry, (ts 8). Counsel for the appellant suggested that the appellant was "waving the knife around trying to get people away" from his sister (ts 9). In his summary of the facts, his Honour stated that the appellant "slashed" at Cherry, then stabbed Samuels. His Honour did not suggest that the appellant deliberately or methodically stabbed each victim; rather, he described his behaviour as "inherently dangerous and risky conduct on your part". His Honour added, "There is always going to be a problem when someone brandishes a knife late at night in those types of circumstances." These comments seem to suggest that it was the appellant's behaviour in taking and then brandishing a knife during the course of a physical confrontation which gave the offence its seriousness, rather than the deliberateness of the stabbing. This view was consistent with the submissions made on behalf of the appellant.

21 It is true that his Honour appeared to accept that the appellant "attempted to stab" Early, a proposition denied by the appellant, but, in our view, nothing turns on this. The appellant was not charged with attempting to stab Early. Further, it was accepted that his intention was to harm Early, by fighting him, and that his plan involved a strong likelihood that he would "wave" the knife at others, so that he could get to Early. Even if events took a slightly different course once his sister had hit out with the pool cue, the culpability inherent in the appellant's plan would be no different, whether the State's, or the appellant's, submissions on this point were accepted.

22 Ground 1 also fails and the appeal must be dismissed.